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Full-Text Articles in Law

Inequality Rediscovered, David Singh Grewal Jan 2017

Inequality Rediscovered, David Singh Grewal

Faculty Scholarship Series

Widespread recognition that economic inequality has been growing
for forty years in most of the developed world, and in fact has tended
to grow across most of the history of modern economies, shows that
the period 1945-1973, when inequality of wealth and income shrank,
was a marked anomaly in historical experience. At the time, however,
the anomalous period of equality seemed to vindicate a long history of
optimism about economic life: that growth would overcome meaningful
scarcity and usher in an egalitarian and humanistic period that could
almost qualify as post-economic. This has not been the experience
of the last ...


The “Complete Diversity” Requirement For Federal Jurisdiction: Time To Correct This 210-Year-Old Error, E. Donald Elliott Jan 2017

The “Complete Diversity” Requirement For Federal Jurisdiction: Time To Correct This 210-Year-Old Error, E. Donald Elliott

Faculty Scholarship Series

Legal Opinion Letter


Before Peer Production: Infrastructure Gaps And The Architecture Of Openness In Synthetic Biology, David Singh Grewal Jan 2017

Before Peer Production: Infrastructure Gaps And The Architecture Of Openness In Synthetic Biology, David Singh Grewal

Faculty Scholarship Series

Legal scholarship on intellectual property needs to be reoriented to consider how state action helps to generate the infrastructure of emerging fields in ways that prove conducive to their development. In this Article, I contribute to that reorientation through an in-depth analysis of one important emerging technology, synthetic biology. The ambition of synthetic biology is to make biology easier to engineer through standardization and associated technical processes. Early successes indicate the scientific promise of the field and help to explain why its advocates are concerned to see the field develop in an open and publicly beneficial manner. What openness might ...


Reorganizing Nato: Europe’S Last Chance To Preserve Fundamental Rights, Bruce Ackerman Jan 2016

Reorganizing Nato: Europe’S Last Chance To Preserve Fundamental Rights, Bruce Ackerman

Faculty Scholarship Series

CONFERENCE ON “GLOBAL CONSTITUTIONAL DISCOURSE AND TRANSNATIONAL CONSTITUTIONAL ACTIVITY” PALAZZO DUCALE, VENICE, ITALY 7 December 2016 Keynote Address


Counter-Cyclical Bankruptcy Law: An Efficiency Argument For Employment-Preserving Bankruptcy Rules, Zachary Liscow Jan 2016

Counter-Cyclical Bankruptcy Law: An Efficiency Argument For Employment-Preserving Bankruptcy Rules, Zachary Liscow

Faculty Scholarship Series


Bankruptcy judges consider both value to creditors and harm to employees in deciding whether to liquidate or reorganize firms. This Article proposes to systematize what is currently an ad hoc trade-off by making bankruptcy law
explicitly counter-cyclical- that is, placing more weight on preserving employment during times of high unemploy­ment. Although the suggestion that bankruptcy law should consider em­ployment effects runs counter to decades of economic analysis of bankruptcy law, this Article bases its analysis on the traditional law and economics efficiency norm. During times of high unemployment, significant social benefits flow from maintaining employment, as evi­denced ...


Britain At The Constitutional Crossroads – Court, Parliament, And Popular Sovereignty In The Twenty-First Century, Bruce Ackerman Jan 2016

Britain At The Constitutional Crossroads – Court, Parliament, And Popular Sovereignty In The Twenty-First Century, Bruce Ackerman

Faculty Scholarship Series

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University. His lecture is entitled 'Britain at the Constitutional Crossroads – Court, Parliament, and Popular Sovereignty in the Twenty-First Century'. The event was organized by three research centres at Queen Mary University of London: the Mile End Institute, the Study of the History of Political Thought and the Centre for Law and Society in a Global Context.


Closing Remarks: Law And Inequality After The Crisis, David Singh Grewal Jan 2016

Closing Remarks: Law And Inequality After The Crisis, David Singh Grewal

Faculty Scholarship Series

I am honored to have been asked to give the closing remarks to what has been an inspiring and insightful conference, and humbled to do so before so many respected friends and colleagues. I think my most important duty before doing so is to thank the truly amazing students who conceived of and executed this conference from start to finish: Brian Highsmith, Lina Khan, Urja Mittal, and Jake Struebing, and also all of the student moderators too. I also want to thank all the marvelous panelists who traveled from far and near to be here with us. It has meant ...


The Domestic Analogy Revisited: Hobbes On International Order, David Singh Grewal Jan 2016

The Domestic Analogy Revisited: Hobbes On International Order, David Singh Grewal

Faculty Scholarship Series

This Essay reexamines Thomas Hobbes's understanding of international order. Hobbes defended the establishment of an all-powerful sovereign as the solution to interpersonal conflict, and he advanced an analogy between persons and states. Extending this "domestic analogy," theorists following Hobbes have supposed that a global sovereign would prove the solution to interstate conflict. Yet Hobbes himself never proposed a global sovereign, which has led some scholars to diagnose an apparent inconsistency in his philosophy. This Essay seeks to resolve that inconsistency, drawing on Hobbes's theory of the passions and his hope for radical political transformation. Hobbes believed that the ...


Democracy And Legitimacy In Investor-State Arbitration, David Singh Grewal, Cory Adkins Jan 2016

Democracy And Legitimacy In Investor-State Arbitration, David Singh Grewal, Cory Adkins

Faculty Scholarship Series

In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department's refusal to permit the construction of an oil pipeline between Canada and Nebraska. TransCanada claims that the State Department ignored its own favorable environmental assessments of the pipeline multiple times and rejected the proposal to placate misinformed activists and foreign governments. The State Department acknowledges that it denied the permit to enhance the ...


Two Views Of International Trade In The Constitutional Order, David Singh Grewal, Cory Adkins Jan 2016

Two Views Of International Trade In The Constitutional Order, David Singh Grewal, Cory Adkins

Faculty Scholarship Series

In this year of ambitious new trade agreements, public attention has
turned once again to the relationship between the U.S. constitutional order
and global commerce. Though they may seem strictly contemporary
phenomena, neither "globalization" nor the many debates about it are new.
Indeed, they were present in a strikingly similar form in the founding era.
One of the many ways in which the Founders' Constitution differs
from current constitutional practice is in the arena of international trade.
The changing conception of the constitutional status of international trade
tracks the changing place of the American republic in the world of ...


Protecting Consumer Investors By Facilitating "Improved Performance" Competition, Ian Ayres Jan 2015

Protecting Consumer Investors By Facilitating "Improved Performance" Competition, Ian Ayres

Faculty Scholarship Series

Many mutual fund shareholders invest in funds with supracompetitive fees that reduce their expected return even though lower cost alternatives are available. While financial arbitrage can correct pricing problems for other types of securities, conventional arbitrage is difficult to implement in the mutual fund market. As a result, concerns about excessive fund fees have attracted the attention of policy makers, including the SEC. This Article proposes legal reform to our system of mutual fund regulation that responds to the problem of high-cost funds by providing the investors who are making the most substantial mistakes with salient and transparent market information ...


Adam Smith's First Amendment, Robert Post Jan 2015

Adam Smith's First Amendment, Robert Post

Faculty Scholarship Series

Until recently, Washington, D.C., maintained what most would regard as a perfectly ordinary licensing scheme for tour guides. In 2014, the D.C. Circuit declared the scheme unconstitutional under the First Amendment in a remarkable case entitled Edwards v. District of Columbia. The court announced that the District's regulations must be reviewed under intermediate scrutiny because they burden speech; the regulations made it "illegal to talk about points of interest or the history of the city while escorting or guiding a person who paid you to do so" without first obtaining a license. Licenses were awarded to those ...


Diffusing Disputes: The Public In The Private Of Arbitration, The Private In Courts, And The Erasure Of Rights, Judith Resnik Jan 2015

Diffusing Disputes: The Public In The Private Of Arbitration, The Private In Courts, And The Erasure Of Rights, Judith Resnik

Faculty Scholarship Series

Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales—that arbitration had procedural advantages over adjudication ...


Regulating For Rationality, Alan Schwartz Jan 2015

Regulating For Rationality, Alan Schwartz

Faculty Scholarship Series

Traditional consumer protection law employs various disclosure requirements to respond to market imperfections that result when consumers are misinformed or unsophisticated. This regulation assumes that consumers can rationally act on the information that disclosure seeks to produce. Experimental results in psychology and behavioral economics question this rationality premise. The numerous reasoning defects consumers exhibit in these experiments would vitiate disclosure solutions if those defects also presented in markets. To assume that consumers behave as badly in markets as they do in the lab implies new regulatory responses. This Article sets out the novel and difficult challenges that such "regulating for ...


How Conflict Entrenched The Right To Privacy, Reva B. Siegel Jan 2015

How Conflict Entrenched The Right To Privacy, Reva B. Siegel

Faculty Scholarship Series

We are about to mark the fiftieth anniversary of Griswold v. Connecticut, a 1965 case in which the Supreme Court struck down a Connecticut law that criminalized the use of contraception, in the process giving birth to the modern right to privacy. From Griswold’s understanding of “liberty” grew the right to make decisions about abortion, and the right to engage in same-sex sex, without coercion by the criminal law. How has our understanding of the Constitution’s protection for “liberty” come to include sex and marriage, whether sex in marriage, or same-sex marriage? In what follows, I will consider ...


Contraception As A Sex Equality Right, Reva B. Siegel Jan 2015

Contraception As A Sex Equality Right, Reva B. Siegel

Faculty Scholarship Series

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the fiftieth anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception. In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the ...


Conscience Wars: Complicity-Based Conscience Claims In Religion And Politics, Reva B. Siegel Jan 2015

Conscience Wars: Complicity-Based Conscience Claims In Religion And Politics, Reva B. Siegel

Faculty Scholarship Series

Persons of faith are now seeking religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others. We term claims of this kind, which were at issue in Burwell v. Hobby Lobby Stores, complicity-based conscience claims.

Complicity-based conscience claims differ in form and in social logic from the claims featured in the free exercise cases that the Religious Freedom Restoration Act (RFRA) invokes. The distinctive features of complicity-based conscience claims matter, not because they make the claim for religious exemption any less authentic or sincere ...


Race-Conscious But Race-Neutral: The Constitutionality Of Disparate Impact In The Roberts Court, Reva B. Siegel Jan 2015

Race-Conscious But Race-Neutral: The Constitutionality Of Disparate Impact In The Roberts Court, Reva B. Siegel

Faculty Scholarship Series

Ricci v. DeStefano, the New Haven firefighters case, raised questions about the constitutionality of the disparate impact provisions of federal employment discrimination law. This Article draws on the Court's subsequent decision in Fisher v. University of Texas at Austin to clarify disparate impact's constitutionality. In Fisher, no Justice expressed concern about Texas's decision to promote diversity at the state university by admitting the top percent of the state's high school graduates-state action that is race-conscious in purpose, but race-neutral in form. Approval of the percent plan in Fisher shows that under equal protection law of the ...


Make Me Democratic, But Not Yet: Sunrise Lawmaking And Democratic Constitutionalism, David Singh Grewal, Daniel E. Herz-Roiphe Jan 2015

Make Me Democratic, But Not Yet: Sunrise Lawmaking And Democratic Constitutionalism, David Singh Grewal, Daniel E. Herz-Roiphe

Faculty Scholarship Series

"Sunrise amendments"-constitutional provisions that only take effect after a substantial time delay-could revolutionize American politics. Yet they remain undertheorized and unfamiliar. This Article presents the first comprehensive examination of sunrise lawmaking. It first explores a theoretical puzzle. On the one hand, sunrise lawmaking resuscitates the possibility of using Article V amendments to forge "a more perfect union" by inducing disinterested behavior from legislators. On the other, it exacerbates the "counter-majoritarian difficulty" inherent in all constitutional lawmaking. When one generation passes a law that affects exclusively its successors, it sidesteps the traditional forms of democratic accountability that constrain and legitimate ...


Administrative Severability Clauses, E. Donald Elliott, Charles W. Tyler Jan 2015

Administrative Severability Clauses, E. Donald Elliott, Charles W. Tyler

Faculty Scholarship Series

Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules because courts tend to treat administrative rules with severability clauses the same as those without. Courts have treated administrative severability clauses in this way largely because they have mistakenly analogized them to severability clauses contained in statutes. While Congress routinely includes severability clauses in statutes that are drafted in distinct iterations, by different committees with legislative staff who often lack the time and expertise to consider the ...


Debiasing Through Law And The First Amendment, Christine Jolls Jan 2015

Debiasing Through Law And The First Amendment, Christine Jolls

Faculty Scholarship Series

Law often compels the disclosure of information in particular—and, increasingly today, in visual—forms. Some judges conclude that such modern disclosure requirements break with the First Amendment interest in ensuring that consumers are “well informed.” This Article brings an empirically dedicated perspective to such judicial analyses and provides a specific delineation—for three existing legally required visual communications—of data and tools that facilitate evidence-based assessment of the degree to which consumer perceptions are factually ac-curate in the presence versus the absence of such legally required visual communications.


The Flawed Mechanics Of Mutual Fund Fee Litigation, John D. Morley Jan 2015

The Flawed Mechanics Of Mutual Fund Fee Litigation, John D. Morley

Faculty Scholarship Series

In this Article we identify a number of serious mechanical flaws in the statutes and judicial doctrines that govern fee liability for mutual fund managers. Originating in Section 36(b) of the Investment Company Act, mutual fund fee liability allows investors to sue managers for charging fees above a judicially created standard. Commentators have extensively debated whether this liability should exist, but in this Article we focus instead on improving how it actually works. We identify a number of problems. Among other things, statutes and case law (1) impose no penalties to provide deterrence; (2) give recoveries to investors who ...


Programming Errors: Understanding The Constitutionality Of Stop-And-Frisk As A Program, Not An Incident, Tracey L. Meares Jan 2015

Programming Errors: Understanding The Constitutionality Of Stop-And-Frisk As A Program, Not An Incident, Tracey L. Meares

Faculty Scholarship Series

This Essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism in understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally; it also recasts the debate a bit. A critical but obscured issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop-and-frisk in Terry v Ohio and the scale at which police today (and historically) engage in stop-and-frisk as a practice. To put this more succinctly, while the Court in Terry authorized ...


The Stamp Act And The Political Origins Of American Legal And Economic Institutions, Claire Priest Jan 2015

The Stamp Act And The Political Origins Of American Legal And Economic Institutions, Claire Priest

Faculty Scholarship Series

The American colonial protest against Parliament's Stamp Act was a landmark event in the history of the Founding Era, propelling the colonies toward independence. To date, scholars have focused on colonists' constitutional objections to the Stamp Act. Yet, the Stamp Act taxed legal and institutional services and, as this Article describes, the opposition to the Stamp Act also focused on defending low-cost institutions that served local communities. It examines the arguments for and against the Stamp Act as revealing two distinct visions of the role for institutions in economic growth. It suggests that American independence affirmed colonists' commitment to ...


Book Review: Poverty Law, Policy, And Practice, Stephen Wizner Jan 2015

Book Review: Poverty Law, Policy, And Practice, Stephen Wizner

Faculty Scholarship Series

What should law students learn about poverty and its relationship to law? What is the doctrinal or theoretical subject matter that justifies a separate course in law and poverty? Are there laws and legal issues that specifically or uniquely relate to people living in poverty? Does law play a role in creating and maintaining poverty? Can law reduce or even eliminate poverty? Do lawyers have the ability and professional responsibility as lawyers to challenge poverty and to address legal problems of poor people that are consequences of poverty? What prompts these questions, and others, is the publication of the first ...


Compelling Interests And Contraception, Reva B. Siegel Jan 2015

Compelling Interests And Contraception, Reva B. Siegel

Faculty Scholarship Series

On the eve of Griswold v. Connecticut's fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to a federal law requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices concluded that the government has compelling interests in ensuring employees access to contraception, but did not discuss these interests in any detail. In what follows, we clarify these interests by connecting discussion in the Hobby Lobby opinions and the federal government's briefs to related cases on compelling interests and individual rights ...


Greater Ttip Ambition In Chemicals: Why And How, E. Donald Elliott, Jacques Pelkmans Jan 2015

Greater Ttip Ambition In Chemicals: Why And How, E. Donald Elliott, Jacques Pelkmans

Faculty Scholarship Series

To date, the negotiations over chemicals in the Translatlantic Trade and Investment Partnership (TTIP) have not shown sufficient ambition. The talks have focused too much on the differences in the two ‘systems’, rather than on the actual levels of health and environmental protection for substances regulated by both the US and the EU. Given the accomplishments within the OECD and the UN Globally Harmonised System of Classification and Labelling of Chemicals (GHS), the question is whether TTIP can be any more ambitious in the area of chemicals? We find that there is no detailed or systematic knowledge about how the ...


Windsor's Mad Genius: The Interlocking Gears Of Rights And Structure, Heather K. Gerken Jan 2015

Windsor's Mad Genius: The Interlocking Gears Of Rights And Structure, Heather K. Gerken

Faculty Scholarship Series

This paper offers a new take on Windsor v. the United States, a case on everyone's mind as this issue goes to print given the Supreme Court's recent grant of certiorari in the same-sex marriage cases. Be warned, though. Academics usually come to bury opinions, not to praise them, so I'm stepping out of role by saying something nice about a Supreme Court opinion. But I think there's a bit of mad genius in Windsor and that academics have been too quick to dismiss its insights.


Original Meaning And Marriage Equality, William N. Eskridge Jan 2015

Original Meaning And Marriage Equality, William N. Eskridge

Faculty Scholarship Series

In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this Article, Professor Eskridge maintains that original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no "expectations" that states in 1868 would have to ...


The Ripple Effect Of "Leg-Reg" On The Study Of Legislation & Administrative Law In The Law School Curriculum, Abbe R. Gluck Jan 2015

The Ripple Effect Of "Leg-Reg" On The Study Of Legislation & Administrative Law In The Law School Curriculum, Abbe R. Gluck

Faculty Scholarship Series

Most of the current debates over adding a mandatory legislation administration course to the law school curriculum rightly focus on the need for and value of such a course, or on what traditional core course(s) the so-called "leg-reg" course might replace. Less often investigated, however-and the subject of this article-is the question of how "leg-reg" might affect preexisting or future upper-level offerings in legislation and administrative law. Also rarely probed is the question of whether the impact on the two fields is the same. Given that legislation is the younger and less-entrenched field, this author has long wondered whether ...