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Law And Borders, Cristina M. Rodriguez Jul 2014

Law And Borders, Cristina M. Rodriguez

Faculty Scholarship Series

In late 2013, the California legislature and Governor Jerry Brown put immigration squarely on their agendas. The governor signed bills limiting police cooperation with federal immigration enforcement, expanding access to in-state tuition benefits for unauthorized immigrant students, and clarifying that all individuals who met the requirements to practice law in California were eligible for law licenses, regardless of immigration status.

At the same time, he vetoed a bill that would have permitted lawful permanent residents to sit on juries. He observed that jury service, like voting, was “quintessentially a prerogative and responsibility of citizenship.”


Obama Administration Proposes New Federal Role In Siting Shale Gas Development In Combination With Renewables, E. Donald Elliott Mar 2014

Obama Administration Proposes New Federal Role In Siting Shale Gas Development In Combination With Renewables, E. Donald Elliott

Faculty Scholarship Series

One of the most interesting aspects of the State of the Union for the energy industry was not what the president said, but something buried in the accompanying White House fact sheet: a proposal for the federal government to assume an enhanced role in "helping" to plan shale gas development and at the same time promote renewable energy.


Uniformity And Integrity In Immigration Law: Lessons From The Decisions Of Justice (And Judge) Sotomayor, Cristina M. Rodriguez Mar 2014

Uniformity And Integrity In Immigration Law: Lessons From The Decisions Of Justice (And Judge) Sotomayor, Cristina M. Rodriguez

Faculty Scholarship Series

Though courts and scholars emphasize the importance of uniformity in the interpretation and application of federal immigration law, systemic complexity makes its achievement elusive. In the immigration opinions she has drafted to date on the Supreme Court, as well as in her extensive work reviewing asylum adjudications on the Second Circuit, Justice Sotomayor has invoked uniformity as a means of promoting fairness and accountability. But she also has demonstrated how these values can be advanced even in uniformity’s absence, when the system produces conflict and divergent enforcement outcomes. Her opinions highlight how courts can meaningfully, albeit imperfectly, constrain administrative ...


Annual Report 2013–2014, Law Library Jan 2014

Annual Report 2013–2014, Law Library

Yale Law Library Annual Report

No abstract provided.


Lex Majoris Partis: How The Senate Can End The Filibuster On Any Day By Simple Majority Rule, Akhil Reed Amar Jan 2014

Lex Majoris Partis: How The Senate Can End The Filibuster On Any Day By Simple Majority Rule, Akhil Reed Amar

Faculty Scholarship Series

Though I never knew Professor Brainerd Currie-he died when I was just a lad-I did know and admire his son, Professor David Currie, who passed away in 2007. I was especially impressed by the younger Currie's sustained interest in congressional constitutionalism'-that is, in various constitutional issues that have arisen in Congress and that have often involved special rules and procedures of Congress itself. In the tradition of the younger Professor Currie, I propose to use this hour, as the 2013 Currie Lecturer, to address one of the most important contemporary issues of congressional constitutionalism: the Senate filibuster. In ...


The Real Problem With Citizens United: Campaign Finance, Dark Money, And Shadow Parties, Heather K. Gerken Jan 2014

The Real Problem With Citizens United: Campaign Finance, Dark Money, And Shadow Parties, Heather K. Gerken

Faculty Scholarship Series

I want to begin by thanking Marquette University Law School and the organizers of the Boden Lecture for inviting me here today. It's an honor to be invited to deliver a lecture named after such an illustrious dean. And it's an honor to be invited by Dean Joseph Kearney, who is not just a distinguished dean in his own right but someone known in the legal world for his integrity and decency. Even back in the days when we clerked together, he held the respect of every clerk at the Supreme Court. It has been especially lovely to ...


The Last Days Of Disco: Why The American Political System Is Dysfunctional, Jack M. Balkin Jan 2014

The Last Days Of Disco: Why The American Political System Is Dysfunctional, Jack M. Balkin

Faculty Scholarship Series

Whit Stillman's 1998 film The Last Days of Disco portrays the misadventures of aimless young people in the early 1980s who engage in meaningless and occasionally misguided behavior and who are slowly transitioning to adult life. For my purposes, "the last days of disco" also refers to the period of the late 1970s and early 1980s when the United States was going through a political transition - between an older, exhausted political regime and a newer one. Near the end of the 1970s, many people believed that the United States of America was thoroughly ungovernable; by 1984, most people did ...


Contracting Externalities And Mandatory Menus In The U.S. Corporate Bankruptcy Code, Antonio E. Bernardo, Alan Schwartz, Ivo Welch Jan 2014

Contracting Externalities And Mandatory Menus In The U.S. Corporate Bankruptcy Code, Antonio E. Bernardo, Alan Schwartz, Ivo Welch

Faculty Scholarship Series

Our paper offers the first justification for the U.S. bankruptcy code, in which firms are not allowed to commit themselves ex-ante in their lending agreements either to (Chapter 7) liquidation or to (Chapter 11) reorganization in case of distress ex-post. If fire-sale liquidation imposes negative externalities on their peers, then firms can be collectively better off if they are all forced into a no-opt-out choice (a mandatory “menu”). This is the case even though they would individually want to commit themselves to liquidation, and it is collectively better for them than voluntary contract choice or mandatory liquidation. Our paper ...


Welcome To New Columbia: The Fiscal, Economic And Political Consequences Of Statehood For D.C., David Schleicher Jan 2014

Welcome To New Columbia: The Fiscal, Economic And Political Consequences Of Statehood For D.C., David Schleicher

Faculty Scholarship Series

Returning from work on a stormy day a few months ago, I was somewhat surprised to find the lampposts on the street covered in D.C. Statehood signs. While such campaigns ebb and flow, this level of full-street coverage was, to say the least, impressive. At that moment, with a whoosh of wind, the banners fell off one of the lampposts and flew down Connecticut Avenue. Independence, you might say, was in the air. And with good reason, too: the District is booming. Over the past five years, the economic growth of metro D.C. has dramatically outstripped the nation ...


Twenty-First-Century Problems -- Twentieth-Century International Law, Harold Hongju Koh Jan 2014

Twenty-First-Century Problems -- Twentieth-Century International Law, Harold Hongju Koh

Faculty Scholarship Series

It is great to be back here with so many friends. I have former students, colleagues from the State Department, and members of the two law schools. As Dean Scharf said, in my last four decades, I have spent more than thirty years as an international law professor, five years as a dean, twenty years as a human rights lawyer, and ten years in the U.S. government.


Introduction: Law And Neoliberalism, David Singh Grewal, Jedediah Purdy Jan 2014

Introduction: Law And Neoliberalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship Series

"Neoliberalism" refers to the revival of the doctrines of classical economic liberalism, also called laissez-faire, in politics, ideas, and law. These revived doctrines have taken new form in new settings: the "neo-" means not just that they are back, but that they are also different, a new generation of arguments. What unites the two periods of economic liberalism is their political effect: the assertion and defense of particular market imperatives and unequal economic power against political intervention. Neoliberalism's advance over the past few decades has reshaped most important domains of public and private life, and the law has been ...


The Loyal Opposition, Heather K. Gerken Jan 2014

The Loyal Opposition, Heather K. Gerken

Faculty Scholarship Series

The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we've found our own way to build loyalty while licensing opposition, but it's been a rights-based strategy, not an institutional one. Rights are the means we use to build a loyal opposition, and diversity is the measure for our success. The story isn't just wrong. It's also not nearly as attractive a tale as we make it out to be. An unduly narrow focus on rights ...


What 30 Years Of Chevron Teach Us About The Rest Of Statutory Interpretation, Abbe R. Gluck Jan 2014

What 30 Years Of Chevron Teach Us About The Rest Of Statutory Interpretation, Abbe R. Gluck

Faculty Scholarship Series

Chevron, the most famous rule of administrative law, is also a central doctrine of statutory interpretation. But Chevron is understood and operates quite differently from most of the other statutory interpretation rules. This Essay explores six such divergences and how they illuminate of some the most important, unanswered questions of the statutory era.


Statutory Interpretation From The Inside-An Empirical Study Of Congressional Drafting, Delegation, And The Canons: Part Ii, Abbe R. Gluck, Lisa Schultz Bressman Jan 2014

Statutory Interpretation From The Inside-An Empirical Study Of Congressional Drafting, Delegation, And The Canons: Part Ii, Abbe R. Gluck, Lisa Schultz Bressman

Faculty Scholarship Series

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents' knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than judicial rules of interpretation. These factors range from the fragmentation caused by the committee system, to ...


Reflections On The Judicialization Of The Crime Of Aggression, W. Michael Reisman Jan 2014

Reflections On The Judicialization Of The Crime Of Aggression, W. Michael Reisman

Faculty Scholarship Series

I propose to consider some of the challenges that the addition of jurisdiction over the crime of aggression will present to the International Criminal Court (ICC). Article 5 of the Rome Statute gave the Court jurisdiction over “the crime of aggression...once a provision is adopted...defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” In the absence of adoption by consensus, adoption required a two-thirds majority. But the amendment would enter into force for all States Parties after ratification or acceptance by seven-eighths of them.


Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men’S Legal Socialization, Tom R. Tyler, Jeffrey Fagan, Amanda Geller Jan 2014

Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men’S Legal Socialization, Tom R. Tyler, Jeffrey Fagan, Amanda Geller

Faculty Scholarship Series

Legal scholars recognize the centrality of the issue of legal culture (i.e., the “network of values and attitudes relating to law”) (Friedman 1975:34) to the functioning of legal authorities. In particular, they have been concerned about how Americans acquire views about the legitimacy of law and legal authority (Sarat 1977). People do so through a process that includes childhood socialization (Tapp & Levine 1977) and later personal and peer experiences with legal authorities. In particular, the period of adolescence and young adulthood is often viewed as key since young men have their most frequent experiences with legal authorities, as do their peers, during this period (Brunson & Weitzer 2011; Fagan & Tyler 2005). The most frequent legal authority young people encounter is a police officer (Tyler & Huo 2002). The goal of this study is to explore the impact on legitimacy of a particularly salient type of young ...


For Diversity In The International Regulation Of Financial Institutions: Critiquing And Recalibrating The Basel Architecture, Roberta Romano Jan 2014

For Diversity In The International Regulation Of Financial Institutions: Critiquing And Recalibrating The Basel Architecture, Roberta Romano

Faculty Scholarship Series

This Article challenges the prevailing view of the efficacy of harmonized international financial regulation and provides a mechanism for facilitating regulatory diversity and experimentation within the existing global regulatory framework, the Basel Accords. Recent experience suggests that regulatory harmonization can increase, rather than decrease, systemic risk, an effect that is the precise opposite of the objective of harmonization. By incentivizing financial institutions worldwide to follow broadly similar business strategies, regulatory error contributed to a global financial crisis. Furthermore, the dynamic nature of financial markets renders it improbable that regulators will be able to predict with confidence what are the optimal ...


The Seventeenth Amendment And Federalism In An Age Of National Political Parties, David Schleicher Jan 2014

The Seventeenth Amendment And Federalism In An Age Of National Political Parties, David Schleicher

Faculty Scholarship Series

Despite it being the constitutional amendment that most directly altered the structure of the federal government, little is known about how and why the Seventeenth Amendment was enacted. Existing scholarship on why the Constitution was amended to require direct elections for US. Senators, rather than having them appointed by state legislatures, has troubled accounting for two major puzzles. Why were state legislatures eager to give away the power to choose Senators? And why was there virtually no discussion of federalism during debates over removing a key constitutional protection for states governments?

This Article offers a theory that can provide an ...


Criminal Attempts, Gideon Yaffe Jan 2014

Criminal Attempts, Gideon Yaffe

Faculty Scholarship Series

The intuitive idea that failed attempts to complete crimes are often themselves crimes belies the complexity and confusion surrounding the adjudication of criminal attempts. This Article offers an account of the grounds for the criminalization of attempt that provides the courts with sorely needed substantive guidance about precisely which kinds of behavior constitute a criminal attempt. The Article focuses on three well-known problems in the adjudication of attempt that have been particularly baffling both to courts and to commentators: specifying the line between solicitation and attempt; determining the conditions under which an “impossible” attempt is still criminal; and identifying the ...


De-Schooling Constitutional Law, Bruce Ackerman Jan 2014

De-Schooling Constitutional Law, Bruce Ackerman

Faculty Scholarship Series

For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The dynamic of challenge-and-preservation leads to an ongoing effort at synthesis -leaving the next generation with a legacy that, once again, provokes another cycle of critique and transformation as parents and grandparents leave the constitutional stage. This Symposium begins a new round of reappraisal: Now that the civil rights generation is passing from the scene, how will the twenty-first century remember its ...


The Warren Court And The Constitution (With Special Emphasis On Brown And Loving), Akhil Reed Amar Jan 2014

The Warren Court And The Constitution (With Special Emphasis On Brown And Loving), Akhil Reed Amar

Faculty Scholarship Series

When Earl Warren joined the Court as its fourteenth Chief Justice in 1953, Jim Crow ruled the South. Many states disfranchised blacks with impunity. The Bill of Rights did not generally apply against the states. The Court had never used the First Amendment to invalidate congressional action. Some states had succeeded in chilling core political expression. State-organized prayers were commonplace in public-school classrooms. State criminal defendants had precious few federal constitutional rights. No general right to vote existed. Almost all state legislatures were malapportioned, some grossly so. Over the next sixteen years, Warren helped change all that, dismantling the old ...


Opening Remarks, Akhil Reed Amar Jan 2014

Opening Remarks, Akhil Reed Amar

Faculty Scholarship Series

It is a very great pleasure and honor to be here with you all back at William and Mary. It's a special treat to follow Senator Whitehouse-also a challenge, given his extraordinary performance. Dean Douglas, it's always great to see you again, and also a special thanks to Neal Devins for helping to make this possible. I guess I can't help saying one other thing. As I walked into this building, and I noticed the statue of George Wythe, teacher, known by, among other things, his extraordinary students: Thomas Jefferson, John Marshall, Henry Clay. Did I mention ...


Book Review: What Do We Talk About When We Talk About The Constitution?, Akhil Reed Amar, Sanford Levinson Jan 2014

Book Review: What Do We Talk About When We Talk About The Constitution?, Akhil Reed Amar, Sanford Levinson

Faculty Scholarship Series

It is certainly not surprising that America's Unwritten Constitution is remarkably stimulating, informative, and challenging. You are surely correct that one cannot possibly understand the American constitutional system simply by reading the text of the Constitution (or, for that matter, reading decisions of the judiciary ostensibly "interpreting" the text). Instead, one must not only look at long-established American practices but also at social movements and transcendent moments in American history-the Gettysburg Address and Martin Luther King's "Dream" speech are two that you emphasize-that have provided the rationales for how we understand those practices (and, on occasion, become willing ...


Negotiating Conflict Through Federalism: Institutional And Popular Perspectives, Cristina M. Rodriguez Jan 2014

Negotiating Conflict Through Federalism: Institutional And Popular Perspectives, Cristina M. Rodriguez

Faculty Scholarship Series

The contours of our federal system are under constant negotiation, as governments construct the scope of one another’s interests and powers while pursuing their agendas. For our institutions to manage these dynamics productively, we must understand the value the system is capable of generating. But no single conception of this value exists, because the virtues and costs of any particular federal-state relationship, in any given federalism controversy, will appear different depending on perspective: the federal, state, and even local will each perceive their own advantages. And none of these conceptions will map perfectly onto the people’s perceptions. In ...


Crony Capitalism: Right Here, Right Now, Jonathan R. Macey Jan 2014

Crony Capitalism: Right Here, Right Now, Jonathan R. Macey

Faculty Scholarship Series

Crony capitalism describes an economic and political environment in which pursuing and obtaining government favors is both part of everyday life and a necessary protocol for succeeding in business. Where crony capitalism exists, notions of meritocracy have been displaced by notions of cronyism or kleptocracy or something similar. Crony capitalism has ebbed and flowed in our history, and it seems as though today it is on the rise. Just looking at late 2012 and early 2013, one could talk for hours about the examples of crony capitalism—for example, the $78 million tax write-off in the new tax bill for ...


Reducing Corporate Criminality: The Role Of Values, Tom R. Tyler Jan 2014

Reducing Corporate Criminality: The Role Of Values, Tom R. Tyler

Faculty Scholarship Series

Can businesses effectively regulate the behavior of their employees, and if so, what strategies should they use to best achieve that goal? Recent corporate scandals have evoked a heightened concern among members of the public, government officials, and business leaders about both whether businesses can regulate the conduct of their employees, and how to effectively secure employee adherence with corporate rules and policies. White collar crime is again on the public agenda.


Proportionality, General Principles Of Law, And Investor-State Arbitration: A Response To Jose Alvarez, Alec Stone Sweet Jan 2014

Proportionality, General Principles Of Law, And Investor-State Arbitration: A Response To Jose Alvarez, Alec Stone Sweet

Faculty Scholarship Series

Judicial lawmaking constitutes the primary mechanism for the progressive construction of international law today. International judges and arbitrators make law, as a by-product of their functions as dispute-resolvers, not least, through interpreting norms found in treaties and other recognized sources of law. They do so, increasingly, in dialogues with judges across jurisdictional boundaries. In this contribution to the 2013 Symposium of the New York University Journal of International Law and Politics, we explore these themes, focusing in particular on how judges and arbitrators have developed general principles of law.


Reducing Inequality On The Cheap: When Legal Rule Design Should Incorporate Equity As Well As Efficiency, Zachary D. Liscow Jan 2014

Reducing Inequality On The Cheap: When Legal Rule Design Should Incorporate Equity As Well As Efficiency, Zachary D. Liscow

Faculty Scholarship Series

This Note develops a framework for understanding when policymakers should use equity-informed legal rules -rather than taxes -to redistribute. First, policymakers should choose the most efficient way to reduce income inequality, which may involve allocating legal entitlements to the poor, depending upon several factors described in the Note. Second, sometimes legal rules ought to account for non-income characteristics based upon which the tax system would be poorly equipped to redistribute.


The Laws Of Capitalism (Book Review), David Singh Grewal Jan 2014

The Laws Of Capitalism (Book Review), David Singh Grewal

Faculty Scholarship Series

The past year has seen the surprising ascent of French economist Thomas Piketty to "rock star" status. The reading public's appetite for his economic treatise seems motivated by a growing unease about economic inequality and an anxiety that the "Great Recession," which followed the financial crisis of 2008, defines a new economic normal. The seemingly plutocratic response to the crisis has become the focus of angry attacks by protesters on both left and right, but their criticisms have had little practical effect, even while subsequent events have confirmed their fears. In 2010, the United States Supreme Court sealed the ...


The Two Trends That Matter For Party Politics, Heather K. Gerken, Joseph Fishkin Jan 2014

The Two Trends That Matter For Party Politics, Heather K. Gerken, Joseph Fishkin

Faculty Scholarship Series

We are working on a project that begins with two simple observations about the current state of party politics. The first is that the political arena is now dominated by what one of us has called “shadow parties”—nominally independent groups that are run by major party insiders and that perform functions that in the past were performed directly by the parties. We’re talking about groups like Organizing For Action (OFA), once run by Jim Messina, or the American Crossroads and Crossroads GPS groups run by Karl Rove. These groups are doing a lot more than buying a few ...