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Articles 631 - 660 of 12012
Full-Text Articles in Entire DC Network
In Search Of The Public Interest, Jodi L. Short
In Search Of The Public Interest, Jodi L. Short
Faculty Scholarship
“Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative state. On the one hand, the public interest standard provides a vessel for agencies to infuse policymaking with the moral and ethical commitments of the community. On the other hand, regulation in the public interest opens the door to the arbitrary exercise of tyrannical state power. Despite the lofty aspirations and ominous warnings about regulation in the public interest, little is known about how agencies actually decide what is in the public interest when charged by statute to do so. …
Practical Considerations In Starting And Operating An Academic Low-Income Taxpayer Clinic, Minoj Viswanathan, Amy Spivey
Practical Considerations In Starting And Operating An Academic Low-Income Taxpayer Clinic, Minoj Viswanathan, Amy Spivey
Faculty Scholarship
Low-income taxpayer clinics (“LITCs”) provide legal assistance to underserved clients with active federal tax controversies, conduct educational outreach to low-income and English-as-a-second-language taxpayers, and work to ensure the fairness and integrity of the tax system. Despite the availability of IRS grant funding for LITCs and the alignment of LITC goals with the core values that underlie clinical legal education, a relatively small percentage of U.S. law schools currently operates an LITC. Moreover, many law school LITCs have closed within the past ten years, demonstrating that, even if started, academic LITCs are challenging to sustain. This Article incorporates the authors’ experiences …
Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O’Neill, Eric Biber, Nicholas Marantz
Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O’Neill, Eric Biber, Nicholas Marantz
Faculty Scholarship
California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …
Linkedin: A Case Study Into How Tech Giants Like Microsoft Abuse Their Dominant Market Position To Create Unlawful Monopolies In Emerging Industries, Ram Bhadra
UC Law Science and Technology Journal
The United States Court of Appeals for the Ninth Circuit should reconsider the merits of hiQ Labs’ antitrust arguments against Microsoft after the Supreme Court of the United States vacated the district court’s judgement and remanded hiQ Labs, Inc. v. LinkedIn Corp. back to the district court. LinkedIn and its parent company Microsoft have violated Section 2 of the Sherman Antitrust Act by denying its direct competitor, hiQ Labs, in the downstream people data analytics market access to data available publicly and exclusively on LinkedIn. Limiting the consumers’ and recruiters’ option of downstream people data analytics tools to only the …
Personal Jurisdiction, Comparativism, And Ford, Scott Dodson
Personal Jurisdiction, Comparativism, And Ford, Scott Dodson
Faculty Scholarship
No abstract provided.
Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser
Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser
Faculty Scholarship
Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …
Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein
Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein
Faculty Scholarship
Legal regimes in the United States generally conceptualize obligations as attaching along one of two pathways: through the entity or the individual. Although these dual conceptualizations made sense in an ordinary pre-modem world, they no longer capture the financial system land scape, now that artificial intelligence has entered the scene. Neither person nor entity, artificial intelligence is an activity or a capacity, something that mediates relations between individuals and entities. And whether we like it or not, artificial intelligence has already reshaped financial markets. From Robinhood, to the Flash Crash, to Twitter's Hash Crash, to the Knight Capital incident, each …
Pursuing Citizenship During Covid-19, Ming Hsu Chen
Pursuing Citizenship During Covid-19, Ming Hsu Chen
Faculty Scholarship
No abstract provided.
Challenges With Defining Pharmaceutical Markets And Potential Remedies To Screen For Industry Consolidation, Robin Feldman, Brent D. Fulton, Jamie R. Godwin, Richard M. Scheffler
Challenges With Defining Pharmaceutical Markets And Potential Remedies To Screen For Industry Consolidation, Robin Feldman, Brent D. Fulton, Jamie R. Godwin, Richard M. Scheffler
Faculty Scholarship
Context: Dramatic increases in pharmaceutical merger and acquisition (M&A) activity since 2010 suggest we are in the midst of a third wave of industry consolidation. Methods: The authors reviewed 168 economic, legal, medical, industry, and government sources to examine the effects of consolidation on competition and innovation and to explore how industry attributes complicate M&A regulation in a pharmaceutical context. Findings: The authors find that, in spite of certain metrics that might argue otherwise, con- solidation consistently reduces innovation and harms the public good. They also find that several factors within the pharmaceutical industry impede proper evaluation of proposed mergers. …
Lochner Revenant: The Dormant Commerce Clause & Extraterritoriality, Robin Feldman, Gideon Schor
Lochner Revenant: The Dormant Commerce Clause & Extraterritoriality, Robin Feldman, Gideon Schor
Faculty Scholarship
During the Lochner era, the Supreme Court, relying on broad inter- pretations of constitutional doctrine, struck down scores of state statutes with an essentially free hand. Today, some federal courts are heading to- wards a new Lochner era, in which numerous state laws regulating health and safety can be invalidated on the thinnest of constitutional grounds. The issues implicate not only a vast amount of national commerce but also the Constitution’s careful balance between federal and state power. Specifically, in two decisions from the late 1980s, the Supreme Court extracted language from a 1935 decision and used that language to …
Race, Public Health, And The Epidemic Of Incarceration, Thalia Gonzalez, Emma Kaeser
Race, Public Health, And The Epidemic Of Incarceration, Thalia Gonzalez, Emma Kaeser
Faculty Scholarship
No abstract provided.
Implementing A (Modern) Progressive Consumption Tax, Manoj Viswanathan
Implementing A (Modern) Progressive Consumption Tax, Manoj Viswanathan
Faculty Scholarship
Progressively taxing consumption has much normative appeal, but pre vious legal scholarship has incorrectly assumed that directly accounting for the expenditures of individual taxpayers is administratively infeasible. Changes in consumer spending and advances in technology require revisiting this assumption. This article proposes a novel framework through which an individual accounting progressive consumption tax (IAPCT) can be imple mented and establishes the IAPCT's superiority to previously proposed forms of progressive consumption taxation. IAPCT advantages include a significant reduction in tax filing costs, improved enforcement, and the immediate de ployment of place-based tax policy.
Colorblind Nationalism And The Limits Of Liberalism, Ming Hsu Chen
Colorblind Nationalism And The Limits Of Liberalism, Ming Hsu Chen
Faculty Scholarship
Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …
The New Racial Wage Code, Veena Dubal
The New Racial Wage Code, Veena Dubal
Faculty Scholarship
The legal identity of on-demand platform workers has become a central site of conflict between labor and industry. Amidst growing economic inequality, labor representatives and workers have demanded that platform workers be afforded em ployee benefits and protections, including minimum wage and overtime rights. Plat form industrialists, meanwhile, have proffered a new regulatory category of worker neither employee nor independent contractor-that limits the protections available to the workforce, legalizes unpredictable, digitally-personalized piece-pay, and con stricts a worker's right to negotiate different terms. To date, legal and socio-legal scholars have primarily analyzed this third category of worker, codified by Proposi tion …
Trade Secrets In Biologic Medicine: The Boundary With Patents, Robin Feldman
Trade Secrets In Biologic Medicine: The Boundary With Patents, Robin Feldman
Faculty Scholarship
Can something be both open and secret? That is the conundrum facing society as trade secret rights chafe against patent rights in cutting-edge, biologic medicine. The conflict is unsurprising. Trade secret has emerged as a relatively late bloomer among the family of intellectual property rights and only recently has begun to establish the boundaries of its own space, a process in which it will inevitably knock against other intellectual property doctrines already occupying their own domains. Nor is it surprising that the clash would arise in a fast-moving area of medical science. From insulin products, to cancer treatments, to mRNA …
Public Undersight, Christina Koningisor
The Negotiable Implementation Of Environmental Law, Dave Owen
The Negotiable Implementation Of Environmental Law, Dave Owen
Faculty Scholarship
tional wisdom describes environmental law as a field filled with rigid mandates. ith that rigidity as a key premise, and they allege that inflexibility is a central failing or, alternatively, a squandered virtue. Influential reform proposals follow from both allegations. This Article demonstrates that these premises are often mistaken. Based on literature reviews and interviews with environmental-law practitioners, it shows that flexibility pervades environmental law, and regulators, regulated entities, and other interest groups routinely use negotiations to navigate that flexibility. Indeed, negotiation is so central to the field that one cannot understand environmental law, either in theory or practice, without …
Faithful Execution In The Fifty States, Zachary Price
Faithful Execution In The Fifty States, Zachary Price
Faculty Scholarship
Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law’s primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described “progressive prosecutors” have employed …
Crisis Construction In Contract Boilerplate, Emily Strauss
Crisis Construction In Contract Boilerplate, Emily Strauss
Faculty Scholarship
No abstract provided.
Dual Federalism, Constitutional Openings, And The Convention On The Rights Of Persons With Disabilities, Benjamin Barsky
Dual Federalism, Constitutional Openings, And The Convention On The Rights Of Persons With Disabilities, Benjamin Barsky
Faculty Scholarship
The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws …
Lost In The Maze: Refugees And The Law, Moria Paz
Lost In The Maze: Refugees And The Law, Moria Paz
Faculty Scholarship
No abstract provided.
Patents As Property For The Takings, Robin Feldman
Patents As Property For The Takings, Robin Feldman
Faculty Scholarship
The Fifth Amendment’s Compensation Clause contains only a few simple words: “nor shall private property be taken for public use without just compensation.” Yet these simple words have confounded legal minds for over 200 years, and as Congress has contemplated various patent law reforms in recent decades, the specter of the Fifth Amendment looms on the horizon. Conventionally, commentators and judges break down the clause into a few diferent components, each of which has generated a voluminous body of caselaw and corresponding scholarly inquiry. First, there is the question of takings: How does one know if something has been “taken” …
Police Secrecy Exceptionalism, Christina Koningisor
Police Secrecy Exceptionalism, Christina Koningisor
Faculty Scholarship
Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up. This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with …
The De Facto Reporter's Privilege, Christina Koningisor
The De Facto Reporter's Privilege, Christina Koningisor
Faculty Scholarship
abstract. While the overwhelming majority of states have established constitutional, statu- tory, or common-law protections for reporters who shield the identity of a confidential source, there is no uniform, crosscutting federal reporter’s privilege. As a consequence, reporters subpoe- naed in federal cases often lack effective formal protections. This can have a chilling effect on news- gathering: sources—and reporters—may find little comfort in knowing that a source’s anonymity is preserved only at a judge’s or prosecutor’s discretion or by a reporter’s willingness to go to jail. For decades, both those in favor of a formal federal reporter’s privilege and those opposed …
Secrecy Creep, Christina Koningisor
Secrecy Creep, Christina Koningisor
Faculty Scholarship
Legal scholars have long been fascinated by the topic of government secrecy. Yet they have largely focused their attention on federal secrecy, rarely exploring secrecy in other contexts. This Article addresses this gap. It turns its attention to state and local government secrets, applying the lens of federal secrecy to the subfederal regime. In doing so, it identifies a troubling new development in state and local law: the migration of powerful federal secrecy protections, initially developed to shield the national security state, into the state and local context. I refer to this process as “secrecy creep.” By illuminating the architecture …
Punitive Surveillance, Kate Weisburd
Punitive Surveillance, Kate Weisburd
Faculty Scholarship
Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people …
"Easing Out" The Fcpa Facilitation Payment Exception, Emily Strauss
"Easing Out" The Fcpa Facilitation Payment Exception, Emily Strauss
Faculty Scholarship
No abstract provided.
Health Law: The Devil In The Tiers, Robin Feldman
Health Law: The Devil In The Tiers, Robin Feldman
The Judges' Book
No abstract provided.
Laws Prohibiting Vaccine Mandates: An Overview, Dorit Rubenstein Reiss
Laws Prohibiting Vaccine Mandates: An Overview, Dorit Rubenstein Reiss
Faculty Scholarship
During the COVID-19 pandemic, for the first time, a significant minority of states passed laws limiting or outright prohibiting vaccines mandates. The laws varied greatly in what they covered, the way they addressed the issue, and their intended results. This Article provides a detailed overview of these mandate bans. Consequently, this Article demonstrates that most of the bans target potential vaccine mandates limiting access to government buildings and services—and points out that no states adopted such mandates. That said, a growing sub-set of states also adopted laws or executive orders prohibiting private actors from imposing mandates—either on customers or on …