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Superfund In The Trump Era, Donald E. Elliott Feb 2018

Superfund In The Trump Era, Donald E. Elliott

Faculty Scholarship Series

Since President Donald Trump took office just over one year ago, much has changed at the U.S. Environmental Protection Agency. In this Expert Analysis series, former EPA general counsels discuss some of the most significant developments and what they mean for the future of environmental law in the U.S.


The Universal Declaration Of Human Rights And The Challenge Of Religion, Samuel Moyn Jan 2018

The Universal Declaration Of Human Rights And The Challenge Of Religion, Samuel Moyn

Faculty Scholarship Series

As its title indicates, Johannes Morsink’s new book takes stock of the grounding and prospects of human rights ideals in the face of what people often call “the return of religion.” He starts by claiming that, given its Holocaust origins, the Universal Declaration of Human Rights of 1948 reflected secular assumptions—a common agreement transcending all faith commitments and requiring none in particular and, in fact, no faith of any kind. I think he proves his case, but scants the reasons why human rights were compatible with so many religions at the time and sidesteps the considerable recent debate ...


The Endgame Of Administrative Law: Governmental Disobedience And The Judicial Contempt Power, Nicholas R. Parrillo Jan 2018

The Endgame Of Administrative Law: Governmental Disobedience And The Judicial Contempt Power, Nicholas R. Parrillo

Faculty Scholarship Series

Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the courts say. But in fact, the federal government's compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government's disobedience. The Article makes four conclusions. First, the federal ...


Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post Jan 2018

Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post

Faculty Scholarship Series

The 2014 decision of the European Court ofJustice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a "right to be forgotten." At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence ...


The Original Theory Of Constitutionalism, David Singh Grewal Jan 2018

The Original Theory Of Constitutionalism, David Singh Grewal

Faculty Scholarship Series

The conflict between various versions of "originalism" and "living constitutionalism" has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance . . . who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is ...


Free Speech In The Algorithmic Society: Big Data, Private Governance, And New School Speech Regulation, Jack M. Balkin Jan 2018

Free Speech In The Algorithmic Society: Big Data, Private Governance, And New School Speech Regulation, Jack M. Balkin

Faculty Scholarship Series

The problems of free speech in any era are shaped by the communications technology available for people to use and by the ways that people actually use that technology. Twenty years ago, in 1997, when I began the Information Society Project at Yale, we were just entering the age of the Internet. Most people were still using dial-up modems, there was no Facebook, Google, or YouTube, Instagram or Snapchat; there were no iPhones. Only twenty years later, we have already entered into a new phase the Algorithmic Society - which features large, multinational social media platforms that sit between traditional nation ...


Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner Jan 2018

Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner

Faculty Scholarship Series

The vast majority of statutory interpretation cases are resolved by the federal courts of appeals, not by the Supreme Court, even though the Supreme Court's practice has received nearly all of the attention from academics and practitioners. In part due to this myopia, the Court and many academics have been mired for decades in a by-now boring debate about "textualism" versus "purposivism." That debate, while ostensibly about the judge's relationship to Congress and its work, has centered in practice on little more than the most appropriate evidentiary tools of interpretation: text, statutory purpose, legislative history, interpretive presumptions, and ...


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 ...


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 ...


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


A New Deal For Old Age, Anne L. Alstott Jan 2017

A New Deal For Old Age, Anne L. Alstott

Faculty Scholarship Series

These are strange days. I, like many of you, am still struggling with the enormity of the presidential election. I am trying to comprehend the implications for the future of our country and the world. I fear that we, as a nation, will lose the progressive gains made in the last eight years. And, worse, we may face retrogression in every sphere of public life, from international relations to climate change to domestic economic policy. The strangeness of these days has a personal dimension. When I wrote the book that serves as the basis for this lecture, I had what ...


The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Amar Jan 2017

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Amar

Faculty Scholarship Series

Our story begins with a Republican president taking office even though, pretty clearly, more Americans had voted against him than had voted for him. No, we are not talking about Donald Trump. (But since he does love being talked about, we will talk about him soon enough.) And no, we are not talking about George W. Bush in 2001, although he too will enter our story, stage right, later on. Nor are we talking about Benjamin Harrison in 1889 or about Rutherford B. Hayes in 1877. Rather in this, the Inaugural Abraham Lincoln Lecture on Constitutional Law, it is altogether ...


A Market Test For Bayh-Dole Patents, Ian Ayres, Lisa Larrimore Ouellette Jan 2017

A Market Test For Bayh-Dole Patents, Ian Ayres, Lisa Larrimore Ouellette

Faculty Scholarship Series

The Bayh-Dole Act, which allows patenting of federally funded research, has been praised for driving growth but also criticized for creating unnecessary deadweight loss and con­tributing to a patent "anticommons." Much of the controversy stems from Bayh-Dole's differing effects on different inventions. The dominant Justification for Bayh-Dole patents is commercialization theory: the idea that exclusive rights are necessary to bring inventions to market. This theory is con­vincing for inventions like pharmaceuticals with high regula­tory barriers and low imitation costs, but not when exclusivity is unnecessary for commercialization, such as for Stanford's widely licensed patents on ...


Triptych's End: A Better Approach To 21st Century International Lawmaking, Harold H. Koh Jan 2017

Triptych's End: A Better Approach To 21st Century International Lawmaking, Harold H. Koh

Faculty Scholarship Series

How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary "triptych" of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreign relations scholars since the Case Act, is dying or dead. In 2013, as State Department Legal Adviser, I argued that: In the twenty-first century ... we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes .... [O]ur ...


The Emerging Law Of 21st Century War, Harold H. Koh Jan 2017

The Emerging Law Of 21st Century War, Harold H. Koh

Faculty Scholarship Series

I am honored to deliver this Lecture in honor of Randolph W. Thrower, a lawyer of great distinction and integrity. It is also my pleasure to open this important symposium on redefined national security threats. This symposium explores the tensions, complementarities, and legal implications of three rapidly evolving areas of national security: cybersecurity, new technologies, and crossborder security. I propose to talk today about the "umbrella issue" that spans all of these topics: the emerging law of twenty-first century war. I bring to this discussion four different perspectives: thirty-five years as an international law professor, twenty years as a human ...


The Trump Administration And International Law, Harold H. Koh Jan 2017

The Trump Administration And International Law, Harold H. Koh

Faculty Scholarship Series

Will Donald trump international law? Since Trump's Administration took office, this question has haunted almost every issue area of international law. In his 2017 Foulston Siefkin Lecture, Professor Harold Hongfu Koh, former Legal Adviser of the U.S. Department of State, argues that Trump does not own these areas, which are influenced by a pervasive transnational legal process in which many other actors participate. The Lecture shows how those opposing Trump's policies in his administration'sf irst year have successfully triggered transnational legal process as part of a collective counter-strategy akin to Muhammad Ali's famous "rope-a-dope." The ...


The Family's Constitution, Douglas Nejaime Jan 2017

The Family's Constitution, Douglas Nejaime

Faculty Scholarship Series

Many of the leading constitutional issues of our day implicate family law matters. Modern substantive due process is replete with questions of family law. Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Planned Parenthood v. Casey, and Lawrence v. Texas raise issues of family formation, intimate relationships, and reproductive decision making. Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley address the contours of marriage. Moore v. City of East Cleveland protects the extended family. Stanley v. Illinois, Lehr v. Robertson, and Michael H. v. Gerald D. consider the rights of unmarried fathers. Troxel v. Granville protects a ...


A Principled Approach Toward Insurance Law: The Economics Of Insurance And The Current Restatement Project, George L. Priest Jan 2017

A Principled Approach Toward Insurance Law: The Economics Of Insurance And The Current Restatement Project, George L. Priest

Faculty Scholarship Series

The American Law Institute ("ALI") initiated a project in 2010 to propose the Principles of the Law of Liability Insurance ("Principles"). A Principles project by the ALI is different from a Restatement of Law, for which the ALI is better known. A Restatement seeks to restate the common law of the fifty U.S. jurisdictions in systematized form. The ALI was organized many decades ago to achieve this ambition, in particular to counter the criticism that varying common law principles in the many different states in the U.S. made the law confused and contradictory across the states. The ALI ...


Legitimacy And Hate Speech, Robert C. Post Jan 2017

Legitimacy And Hate Speech, Robert C. Post

Faculty Scholarship Series

It is a pleasure to participate in this symposium on democratic legitimacy and hate speech regulation. Although I have often contemplated the relationship between First Amendment doctrine and democratic legitimation, I have always done so in the manner of a legal scholar. I have not inquired -as perhaps a moral philosopher might- about what James Weinstein calls "the objective criteria that morally entitle a political entity to govern." I find myself unmoved to speculate about such objective normative criteria, and am instead content to focus on the descriptive conditions necessary for a diverse and heterogeneous population to live together in ...


Courting Disaster: Climate Change And The Adjudication Of Catastrophe, Douglas A. Kysar, R Henry Weaver Jan 2017

Courting Disaster: Climate Change And The Adjudication Of Catastrophe, Douglas A. Kysar, R Henry Weaver

Faculty Scholarship Series

Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop ...


Who's In, Who's Out? Policy To Address Job Rationing During Recession, Zachary Liscow, William Woolston Jan 2017

Who's In, Who's Out? Policy To Address Job Rationing During Recession, Zachary Liscow, William Woolston

Faculty Scholarship Series

In response to the Great Recession, the federal government spent hundreds of billions of dollars in tax and other interventions in the labor market as part of the stimulus and follow-up policies. Policymakers traditionally have based their policies on "Keynesian" theories that recessions are driven by inadequate demand, so that increasing government spending will increase demand for economic activity and workers. However, these theories guide how much to spend, not how to design the spending. As a result, despite this massive outlay of funds, the theory for the form that labor income taxes and related policies should change during recessions ...


Innovation Snowballing And Climate Law, Zachary Liscow, Quentin Karpilow Jan 2017

Innovation Snowballing And Climate Law, Zachary Liscow, Quentin Karpilow

Faculty Scholarship Series

Findings at the frontier of economics suggest startling implications of an under-appreciatedf act about technological development: innovation builds on itself developing path dependencies in which past innovations attract similar, but more advanced, innovations. Innovation snowballs. The world economy needs to undergo a dramatic transformation to avoid the risk of catastrophic effects from climate change. Policy to encourage this transformation should be sensitive to innovation snowballing.


The Efficiency Of Equity In Local Government Finance, Zachary Liscow Jan 2017

The Efficiency Of Equity In Local Government Finance, Zachary Liscow

Faculty Scholarship Series

For generations, debates over what level of government should pay for local government services-most notably school funding-have largely boiled down to a simple pair of assumptions. Having the state or federal government pay for services promotes equality across rich and poor areas, but hampers local tailoring and thereby reduces citizens' choice sets. Economists call this an equity-efficiency tradeoff- centralized funding promotes equity but undermines efficiency. This Article argues that this presumed trade-off is not as stark as generally thought, as it ignores important and underappreciated reasons that centralization promotes choice and thus efficiency. Specifically, more centralized funding helps people live ...


Their Bark Is Bigger Than Their Bite: An Essay On Who Bleeds When The Wolves Bite, Jonathan R. Macey Jan 2017

Their Bark Is Bigger Than Their Bite: An Essay On Who Bleeds When The Wolves Bite, Jonathan R. Macey

Faculty Scholarship Series

Delaware Chief Justice Leo Strine is of the view that America is in terrible shape. Specifically, he identifies deep problems in the fabric of American society, which include "growing income inequality, inflated executive pay, job losses, [and] wage stagnation." Having noted these problems, Strine lays a portion of the blame at the feet of activist hedge funds and the apparently misguided pension plans and university endowments that invest in such hedge funds. In this Essay, I articulate Strine's worldview and argue that while his Feature in this issue of the Yale Law journal is ostensibly about hedge fund activists ...


Recovering The Promise Of The Orderly And Fair Stock Exchange, Jonathan R. Macey, David Swensen Jan 2017

Recovering The Promise Of The Orderly And Fair Stock Exchange, Jonathan R. Macey, David Swensen

Faculty Scholarship Series

U.S. stock exchanges do not exist in the form they historically took and our equity markets are no longer orderly or fair. In the place of the traditional stock exchange, which was oriented around human beings and featured single-venue floor trading, an array of fully-automated trading platforms across multiple venues has arisen. Some of these have been formally designated as stock exchanges for legal purposes, while others operate as trading platforms. Almost all facilitate high frequency trading. We believe that radical change is required to address the pathologies of inefficiency and unfairness that characterize the current structure of U ...


Absorbing South Australia's Wills Act Dispensing Power In The United States: Emulation, Resistance, Expansion, John H. Langbein Jan 2017

Absorbing South Australia's Wills Act Dispensing Power In The United States: Emulation, Resistance, Expansion, John H. Langbein

Faculty Scholarship Series

ince 1975, SouthAustralia has been the epicentre of a notable development in the law of wills. In that year, the State Parliament passed the Wills Act Amendment Act (No 2) 1975 (SA), which amended s 12(2) of the WillsAct 1936 (SA) ('Wills Act'). Section 12(2) allows the Supreme Court to validate a will in which there has been some failure to comply with the formal requirements of the Wills Act, if the evidence in the case persuades the Court that the decedent intended the document to be his or her will. Section 12(2), widely known in the ...


Ensuring Responsibility: Common Article 1 And State Responsibility For Non-State Actors, Oona A. Hathaway, Emily Chertoff, Lara Dominguez, Zachary Manfredi, Peter Tzeng Jan 2017

Ensuring Responsibility: Common Article 1 And State Responsibility For Non-State Actors, Oona A. Hathaway, Emily Chertoff, Lara Dominguez, Zachary Manfredi, Peter Tzeng

Faculty Scholarship Series

In Syria, the United States is "training and equipping" non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training, and support to separatists. In China, "private" computer hackers operating with state support create codes designed to infiltrate sensitive computer systems. These are just afew examples of the many ways in which states work with nonstate actors to accomplish their military and political objectives. While state/ non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law. This is no mere academic hypothetical: consider the Former ...


The Return Of The Lawyer-Statesman?, Robert W. Gordan Jan 2017

The Return Of The Lawyer-Statesman?, Robert W. Gordan

Faculty Scholarship Series

Ben W. Heineman, Jr., a former general counsel of General Electric, has written a book (The Inside Counsel Revolution) proposing an ambitious role for legal advisors to corporations, which he calls "resolving the partner-guardian tension." Corporate lawyers, Heineman argues, must be effective agents in helping their clients attain their performance goals. But they must also ensure that the company acts with "integrity," meaning compliance with the spirit as well as the letter of the laws of the jurisdictions in which the company does business, fostering constructive relations with stakeholders as well as maximizing share prices, and forming collaborations with other ...


In The Eye Of The Beholder, Dan M. Kahan Jan 2017

In The Eye Of The Beholder, Dan M. Kahan

Faculty Scholarship Series

PROFESSOR PENNY WHITE: Good morning. Thank you so much for coming to the annual symposium of the Tennessee Journal ofLaw and Policy. My name is Penny White, and I have the distinguished opportunity to faculty advise this law [journal], the Tennessee Journal ofLaw and Policy. And that's why I am here today. I get the experience of working with incredible students at the College of Law. And one of those is Sean Francis, who is this year's Symposium Editor. I'm going to turn it over to Sean who will introduce our keynote address speaker.


Order Without Intellectual Property Law: Open Science In Influenza, Amy Kapczynski Jan 2017

Order Without Intellectual Property Law: Open Science In Influenza, Amy Kapczynski

Faculty Scholarship Series

Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on "intellectual production without IP" (or "IP without IP") has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group-all without recourse to IP. I analyze the Network as an example of "open science," a ...