Public Law and Legal Theory Commons^™

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

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The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

A Reader’S Guide To Legal Orientalism, Teemu Ruskola

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My book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press 2013) was published in translation in China in 2016. This essay analyzes the Chinese reception of this book. Originally addressed to a North American readership, Legal Orientalism examines critically the asymmetric relationship in which Euro-American law and Chinese law stand to one another, the former regarding itself as an embodiment of universal values while viewing the latter’s as culturally particular ones. The essay explores what happens when a “Western” work of self-criticism is transmitted to an “Eastern” audience. In this context, it analyzes the politics of …

What Comes After January 6? On The Contingent Congressional Procedure, William B. Ewald

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Most criticism of the system of presidential election focuses on the Electoral College, and most criticism of the Electoral College focuses narrowly on the shortcomings of the Electoral College itself. The objections are well known. The most basic is an objection of political principle. The Electoral College, on its face, deviates from the democratic principle of one-person-one-vote and gives the vote of a citizen in Wyoming approximately the same weight as 3.5 votes in California. The result is an unequal distribution of political power, both between citizens and among states. We can call this the 3.5:1 problem.

There are …

Presidential Accountability And The Rule Of Law: Can The President Claim Immunity If He Shoots Someone On Fifth Avenue?, Claire Oakes Finkelstein, Richard Painter

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Can a sitting President be indicted while in office? This critical constitutional question has never been directly answered by any court or legislative body. The prevailing wisdom, however, is that, though he may be investigated, a sitting President is immune from actual prosecution. The concept of presidential immunity, however, has hastened the erosion of checks and balances in the federal government and weakened our ability to rein in renegade Presidents. It has enabled sitting Presidents to impede the enforcement of subpoenas and other tools of investigation by prosecutors, both federal and state, as well as to claim imperviousness to civil …

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

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President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

The Irony Of Health Care’S Public Option, Allison K. Hoffman

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The idea of a public health insurance option is at least a half century old, but has not yet had its day in the limelight. This chapter explains why if that moment ever comes, health care’s public option will fall short of expectations that it will provide a differentiated, meaningful alternative to private health insurance and will spur health insurance competition.

Health care’s public option bubbled up in its best-known form in California in the early 2000s and got increasing mainstream attention in the lead up to the 2010 health reform, the Patient Protection and Affordable Care Act (ACA). The …

Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr.

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This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, Secured Transactions Law in Asia: Principles, Perspectives and Reform (Louise Gullifer & Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking …

Testing For Negative Spillovers: Is Promoting Human Rights Really Part Of The “Problem”?, Anton Strezhnev, Judith G. Kelley, Beth A. Simmons

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The international community often seeks to promote political reforms in recalcitrant states. Recently, some scholars have argued that, rather than helping, international law and advocacy create new problems because they have negative spillovers that increase rights violations. We review three mechanisms for such spillovers: backlash, trade-offs, and counteraction and concentrate on the last of these. Some researchers assert that governments sometimes “counteract” international human rights pressures by strategically substituting violations in adjacent areas that are either not targeted or are harder to monitor. However, most such research shows only that both outcomes correlate with an intervention—the targeted positively and the …

The Proof Is In The Process: Self-Reporting Under International Human Rights Treaties, Cosette D. Creamer, Beth A. Simmons

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Recent research has shown that state reporting to human rights monitoring bodies is associated with improvements in rights practices, calling into question earlier claims that self-reporting is inconsequential. Yet little work has been done to explore the theoretical mechanisms that plausibly account for this association. This Article systematically documents—across treaties, countries, and years—four mechanisms through which reporting can contribute to human rights improvements: elite socialization, learning and capacity building, domestic mobilization, and law development. These mechanisms have implications for the future of human rights treaty monitoring.

Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr.

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Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure …

Conclusion: Law As Scapegoat, Cary Coglianese

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Populist nationalist movements have been on the rise around the world in recent years. These movements have tapped into, and fueled, a deep anger among many members of the public. Especially in the face of stagnant or declining economic prospects—as well as expanding inequality—much anger has been directed at minorities and migrants. Politicians with authoritarian tendencies have sought to leverage such public anger by reinforcing tendencies to scapegoat others for their society’s problems. In this paper, I show that laws and regulations—like migrants—can be framed as “the other” too and made into scapegoats. With reference to developments in Brazil, the …

Rejoining Treaties, Jean Galbraith

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Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer …

Divided By The Sermon On The Mount, David A. Skeel Jr.

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This Essay, written for a festschrift for Bob Cochran, argues that the much-discussed friction between evangelical supporters of President Trump and evangelical critics is a symptom of a much deeper theological divide over the Sermon on the Mount, where Jesus told his disciples to turn the other cheek when struck, love their neighbor as themselves, and pray that their debts will be forgiven as they forgive their debtors. Divergent interpretations of these teachings have given rise to competing evangelical visions of justice. One side of today’s divide—the religious right—can be traced directly back to the fundamentalist critics of the early …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

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This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Dismantling “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb

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Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions. Through thousands …

Illuminating Regulatory Guidance, Cary Coglianese

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Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inaccessible, reaching the point where some observers even worry that guidance has become a form of regulatory “dark matter.” This article identifies a series of measures for agencies to take to bring their guidance documents better into the light. It begins by explaining why, unlike the …

Dimensions Of Delegation, Cary Coglianese

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How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

Rulers Or Rules? International Law, Elite Cues And Public Opinion, Anton Strezhnev, Beth A. Simmons, Matthew D. Kim

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One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on …

Regulating E-Cigarettes: Why Policies Diverge, Eric A. Feldman

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This paper, part of a festschrift in honor of Professor Malcolm Feeley, explores the landscape of e-cigarette policy globally by looking at three jurisdictions that have taken starkly different approaches to regulating e-cigarettes—the US, Japan, and China. Each of those countries has a robust tobacco industry, government agencies entrusted with protecting public health, an active and sophisticated scientific and medical community, and a regulatory structure for managing new pharmaceutical, tobacco, and consumer products. All three are signatories of the World Health Organization’s Framework Convention on Tobacco Control, all are signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights, …

Transparency And Algorithmic Governance, Cary Coglianese, David Lehr

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Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose a …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

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Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Felony Murder, Paul H. Robinson, Tyler Scot Williams

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It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

Assessing The International Criminal Court, Beth A. Simmons, Mitchell Radtke, Hyeran Jo

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One of the most important issues surrounding international courts is whether they can further the dual causes of peace and justice. None has been more ambitious in this regard than the International Criminal Court (ICC). And yet the ICC has been the object of a good deal of criticism. Some people claim it has been an expensive use of resources that might have been directed to other purposes. Others claim that its accomplishments are meager because it has managed to try and convict so few people. And many commentators and researchers claim that the Court faces an inherent tension between …

Statutory Rape, Paul H. Robinson, Tyler Scot Williams

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It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

Our Principled Constitution, Mitchell N. Berman

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Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

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The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Insanity Defense, Paul H. Robinson, Tyler Scot Williams

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It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

Crimes That Changed Our World: Tragedy, Outrage, And Reform: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

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This first chapter of the recently published book Crimes That Changed Our World: Tragedy, Outrage, and Reform, examines the process by which the tragic 1911 Triangle Factory Fire provoked enormous outrage that in turn created a local then national movement for workplace and building safety that ultimately became the foundation for today’s building safety codes. What is particularly interesting, however, is that the Triangle Fire was not the worst such tragedy in its day. Why should it be the one that ultimately triggers social progress?

The book has 21 chapters, each of which traces the tragedy-outrage-reform dynamic in a …

Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams

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This first chapter from the recently published book Mapping American Criminal Law: Variations across the 50 States documents the alternative distributive principles for criminal liability and punishment — desert, deterrence, incapacitation of the dangerous — that are officially recognized by law in each of the American states. The chapter contains two maps visually coded to display important differences: the first map shows which states have adopted desert, deterrence, or incapacitation as a distributive principle, while the second map shows which form of desert is adopted in those jurisdictions that recognize desert. Like all 38 chapters in the book, which covers …

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

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What best explains how “Everything Became War and the Military Became Everything?”— the provocative title of a recent book by Professor Rosa Brooks of Georgetown Law. In this Essay, I turn to the Department of Defense’s (DoD) unique agency design as the vehicle to address this question. Specifically, I first describe and analyze the role that the 1947 National Security Act and 1986 Goldwater-Nichols Act play in incentivizing organizational behavior within the DoD. These two Acts have broad implications for national security governance. Relatedly, I address the consequences of these two core national security laws, focusing on the …