Digital Commons Network^™

Nonparty Interests In Contract Law, Omri Ben-Shahar, David Hoffman, Cathy Hwang

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Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.”

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primacy norm with surprising …

Review Of Daniel Farber, Inequality And Regulation: Designing Rules To Address Race, Poverty, And Environmental Justice, David Weisbach

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No abstract provided.

Lessons From Disease And Economic Surveillance During Covid-19, Anup Malani

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This paper describes disease and economic surveillance during COVID, along with the uses of that surveillance, and lessons learned about the pandemic from that surveillance. It ends with policy suggestions on how to gather intelligence during the next pandemic in India and how surveillance informs suppression policy. The important themes that I stress are the value of population-level surveillance, understanding the incentives and disincentives for surveillance and reporting, and tailoring policy to the results of surveillance.

The January 6 Insurrection And The Problem Of Constitutional Guardianship, Aziz Huq

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No abstract provided.

International Constitution-Making As A Technique Of Gender Ordering: Considering The Role Of The Family In Global Economic Relations, Michele Krech

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No abstract provided.

A Symposium To Mark The Publication, By New York University Press, Of Ian O’Donnell’S Prison Life: Pain, Resistance, And Purpose, Rosemary Gido, Derek S. Jeffreys, Cormac Behan, Kimmett Edgar, Bethany E. Schmidt, Gorazd Mesko, Mary K. Stohr, Ashley T. Rubin

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Recognizing the major scholarly contributions to criminology by the noted Irish criminologist, Ian O’Donnell, The Prison Journal invited seven contemporary corrections and punishment scholars to offer insights into O’Donnell’s new book, Prison Life: Pain, Resistance, and Purpose. Offering contextually rich descriptions of prisoner life, the text features four case study prisons—H Blocks, Northern Ireland; Eastham Unit, Texas; Isir Bet, Ethiopia; and ADX Florence, Colorado, in pivotal time periods and through an individual's custodial career in each institution. The symposium discussants focus on O’Donnell's conceptual framework—the degree of prison integration, system and staff regulation, and legitimacy—and how these reflect the key …

What’S Law Got To Do With It? How The Degree Of Legalization Affects The Durability Of Post-Conflict Autonomy Agreements, Felix Schulte, Gene Carolan

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Research has identified several factors that impact the sustainability of post-conflict territorial autonomy arrangements (TAA), including previous levels of violence, economic development in a given territory, or the strategic importance thereof. We argue that a hitherto neglected variable lies in the legal form of the autonomy agreement – that is, the degree to which it has been ‘legalized’ by the language and processes prescribed in the agreement. Based on a qualitative evaluation, we assess the legalization degree of 236 TAA signed between 1990 and 2019. Survival analyses and Cox regression models show that a higher degree of legalization has a …

Maintaining Connections During The Pandemic: Rural Arts Festivals And Digital Practices, Enya Moore, Bernadette Quinn

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During the COVID lockdowns of 2020/21, the transmission of live or recorded concerts grew exponentially as festival makers embraced digital technologies to a greater degree. Investigating how this digital pivot interrupted festival-making practices is now important given that online and hybrid modes will potentially be used in conjunction with in-person events in the future. This task has relevance for rural areas where digital infrastructures can be under-developed. Yet, place-based, community-organised festivals can play a significant role in sustaining local communities. In this context, we explore the recent digital programming practices of music festivals in West Cork, Ireland. Methodologically, the study …

Analysis Of Strain Correction Procedures For Single Fiber Tensile Testing, Amy Engelbrecht-Wiggans, Amanda L. Forster

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Accurate strain measurement for single fibers is critical for many engineering applications. Typically, the crosshead displacement is used to calculate strain when performing mechanical testing, however there are complicating factors: slack in the specimen or slipping/seating in the grips, other grip effects, and load frame compliance. These are addressed in various testing standards for single fibers, such as ASTM Standards D3822, “Standard Test Method for Tensile Properties of Single Textile Fibers” and C1557, “Standard Test Method for Tensile Strength and Young's Modulus of Fibers”. In this work, an analysis of single fiber test data has been performed to examine both …

Capacity Building For Organizational Resilience: Integrating Standards On Risk, Disruption And Continuity In The Curriculum, Lisa Greenwood, Dawn Hess, Yewande S. Abraham, Jennifer Schneider

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Disruption is an inevitable factor in business and society, while inability to mitigate and manage risk can cause irreparable damage to business, the economy, and our ways of life. The COVID-19 pandemic has heightened interest in standards-based strategies for risk management and crisis preparedness to enhance organizational and societal resilience. University curricula that integrate national and international standards offer students a rich skill-set for effective performance in their careers. Moving forward, we must cultivate capable professionals who understand the challenges and risks facing society, and who grasp standards and systems for strategic planning, response, and recovery to promote organizational resilience …

Finally, It Seems To Be Working – The Evolving Valuation Effect Of The European Union’S Emissions Trading System, Benjamin Lynch, Martha O'Hagan-Luff

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This research examines the market reaction to the publication of firm-specific environmental news for participating firms in the European Union’s Emissions Trading System (EU ETS) during its third phase. Our sample of 123 publicly listed participating firms, located in 21 European countries, accounted for 45.43% of emissions in the EU ETS in 2020. Using an event study methodology during the period 2014–2021, we find that positive news was rewarded with increased returns for publication events related to the latter years of the phase (2017–2020) while it had an insignificant impact for earlier year (2013–2016). This indicates that the EU ETS …

Has The Idaho Supreme Court Wrongly Limited Wrongful Discharge In Contravention Of Public Policy Claims?, John E. Rumel

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No abstract provided.

Can't Get It Out Of My Head: Trade Secrets Liability For Remembered Information, Timothy Murphy

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The earliest trade secrets cases recognized that intentional memorization of trade secret information for the purpose of misappropriating that information should be redressable in a trade secrets action. However, courts did not distinguish between information that was intentionally memorized versus information that was inadvertently remembered. In the early days, trade secrets law was characterized by unfair competition approaches whereby liability would be found only if there was some improper act by the misappropriator. This approach was solidified in the Restatement (First) of Torts, which conditioned misappropriation liability upon a knowledge requirement. The knowledge requirement continued in the later statutory period, …

Rulemaking 3.0: Incorporating Ai And Chatgpt Into Notice And Comment Rulemaking, Stephen M. Johnson

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Technological innovations since the turn of the century have created opportunities to increase public participation in notice and comment rulemaking, increase the efficiency of the process, and increase the quality of the rules adopted by agencies. For some rules, online rulemaking and social media have facilitated increased public participation, but have not necessarily facilitated improvements in the quality of public comments. In addition, in some cases, the transformation of the process has created new challenges for government agencies by making it easier for supporters or opponents of rules to flood agencies with duplicative and potentially false comments to which the …

Vulnerable Customers' Perception Of Corporate Social Responsibility In The Banking Sector In A Post-Crisis Context, Diego Monferrer Tirado, Lidia Vidal-Melia, John Cardiff, Keith Quille

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This research aims to determine to what extent corporate social responsibility (CSR) actions developed by bank entities in Spain improve the vulnerable customers' emotions and quality perception of the banking service. Consequently, this increases the quality of their relationship regarding satisfaction, trust and engagement.

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua A. Macey

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Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal- ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …

Residents Against Housing: A Response To Professor Infranca’S ‘Differentiating Exclusionary Tendencies’, Lee Anne Fennell

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Incumbent residents routinely oppose residential development.¹ Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.² Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.³ Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.⁴

Resident opposition …

Book Review: The “Common-Good” Manifesto, William Baude, Stephen E. Sachs

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In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others …

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis A. Bradley

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The text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a …

The Long Hand Of Anti-Corruption: Israeli Judicial Reform In Comparative Perspective, Tom Ginsburg

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There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition’s efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.

Fractured Majorities And Their Reasons, Saul Levmore

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The wisdom of crowds correctly exalts majority decision-making on appellate courts as well as on many other settings, including hospitals and committees with multiple doctors or board members. But the same confidence in majorities should be applied to the reasons that are attached to a vote, or opinion, and then to a majority’s rejection of a member’s reasoning. This Article introduces the problems confronted when examining the reasons for opinions, and then the reasons beneath those reasons. It shows that majority decision-making is not as reliable as it first seems and, indeed, that a single decision-maker may at times be …

Coordinated Rulemaking And Cooperative Federalism’S Administrative Law, Bridget A. Fahey

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“Cooperative federalism” is not just a model of federalism; it is a model of administration. From health care to air quality to emergency management, transportation, immigration, national security, and more, cooperative federalism is the regulatory model of choice. But scholars have yet to conceptualize a cooperative administrative law for cooperative federalism. As this Article shows, however, federal and state bureaucracies have devised intricate strategies for coordinating their implementation of the programs they jointly administer.

The Article begins to elaborate cooperative federalism’s unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the workhorse of administrative law. I show …

The (Mis)Uses Of The S&P 500, Adriana Z. Robertson

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No abstract provided.

Against Political Theory In Constitutional Interpretation, Christopher S. Havasy, Joshua C. Macey, Brian Richardson

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Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write …

Severability First Principles, William Baude

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The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what …

The Promise & Perils Of Open Finance, Dan Awrey, Joshua Macey

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We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry, offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open …

Strategic Subdelegation, Brian D. Feinstein, Jennifer Nou

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Appointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when …

Democracy's Other Boundary Problem: The Law Of Democratic Disqualification, Tom Ginsburg, Aziz Huq, David Landau

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Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer both a positive account of the function that disqualification plays in constitutional ordering …

Statistical Inference And Power Analysis For Direct And Spillover Effects In Two-Stage Randomized Experiments, Zhichao Jiang, Kosuke Imai, Anup Malani

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Two-stage randomized experiments become an increasingly popular experimental design for causal inference when the outcome of one unit may be affected by the treatment assignments of other units in the same cluster. In this paper, we provide a methodological framework for general tools of statistical inference and power analysis for two-stage randomized experiments. Under the randomization-based framework, we consider the estimation of a new direct effect of interest as well as the average direct and spillover effects studied in the literature. We provide unbiased estimators of these causal quantities and their conservative variance estimators in a general setting. Using these …

Personal Jurisdiction’S Moment Of Opportunity: A Reform Blueprint For Originalists And Nonoriginalists, Allan Erbsen

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Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on jargon rather than a coherent account of how to allocate jurisdictional power …