Public Law and Legal Theory Commons^™

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

Sungjoon Cho

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

A Quantum Congress, Jorge R. Roig

Jorge R Roig

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo

Daniel Lyons

The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?" The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

Compromising The Safety Net: How Limiting Tax Deductions For High-Income Donors Could Undermine Charitable Organizations, Patrick Tolan

Patrick E. Tolan Jr.

President Obama’s recent budget proposals have contemplated reducing the top rate for charitable deductions (and all itemized deductions) to twenty-eight percent. Because America’s largest donors are those in the highest marginal tax brackets, efforts to limit deductibility of charitable donations could have a chilling effect on charitable giving.

In this article the author looks at motivations for charitable donations and specifically at the impact of tax deductibility as a motivating factor. It takes a historical look at the philanthropic surveys and econometric models and examines empirical data concerning impacts of significant changes to the tax code in the 1980s that …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

On Equality: The Anti-Interference Principle, Donald J. Kochan

Donald J. Kochan

This Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. …

Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan

Donald J. Kochan

Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis …

Transformation Of Japan’S Civil Society Landscape, Mary Alice Haddad

Mary Alice Haddad

Japan’s civil society is being transformed as more people volunteer for advocacy and professional nonprofit organizations. In the American context, this trend has been accompanied by a decline in participation in traditional organizations. Does the rise in new types of nonprofit groups herald a decline of traditional volunteering in Japan? This article argues that while changes in civil rights, political opportunity structure, and technology have also taken place in Japan, they have contributed to the rise of new groups without causing traditional organizations to decline, because Japanese attitudes about civic responsibility have continued to support traditional volunteering.

State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan

Donald J. Kochan

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying …

"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan

Donald J. Kochan

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …