Digital Commons Network^™

Conferring Prestige Within Irish Diplomatic Dining: Éamon De Valera At Dublin Castle, 1934-1940, Elaine Mahon

Articles

This article explores the use of the diplomatic meal to confer prestige within Irish international relations between 1934 and 1940 when Éamon de Valera was both President of the Executive Council of the Irish Free State and Minister for External Affairs. It examines how state hospitality evolved under de Valera’s leadership and how de Valera used the meal to confer varying levels of prestige, indicative of rank, status and provenance, on his guests of honour at Dublin Castle. The results would lay the foundation for further developments in state protocols for entertaining important visitors in preparation for Ireland’s growing international …

Access To Justice: A Roadmap To Creating And Launching Consumer Bankruptcy Experiential Programs In Law Schools, Ishaq Kundawala

Articles

It is increasingly difficult for people who need consumer bankruptcy relief to access it. Ironically, many of the people who most need it cannot afford it, and oftentimes they come from underserved communities. Large-scale solutions to this access to consumer bankruptcy problem have been discussed, and even proposed, but not yet implemented. While law schools cannot solve the access problem without congressional intervention, they can, at least, take steps to improve the status quo. One way law schools can address this problem is to create experiential programs focusing on consumer bankruptcy.

These types of programs offer a dual benefit. They …

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

Articles

Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

The Sweep And Force Of Section Three, William Baude, Michael Paulsen

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Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by …

Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg

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Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution- making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the …

The Doj And Ftc's Misguided Attack On Mergers, Richard Epstein

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This Article reviews two recent joint statements by the DOJ and FTC. The first was their request for information on their proposals to “strengthen” the antitrust laws on mergers. The second was the July 2023 release of new draft guidelines which were subject to many comments, often critical of the new regime. The difficulties with both documents start with the initial premise of their inquiries, which falsely posit that any “improvement” of the antitrust laws requires imposing new sanctions on private activities—when in many cases a relaxation of current restrictions may be best. But both agencies write as if the …

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

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No abstract provided.

Relentless As Entrenchment, Jonathan Masur

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No abstract provided.

Lies And The Law: An Introduction, Genevieve Lakier

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No abstract provided.

The Additionality Double Standard, James Salzman, David Weisbach

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Carbon offsets are widely criticized for lacking additionality. The public debate, how- ever, has failed to recognize that the problem of additionality goes far beyond offsets. It arises any time the government subsidizes an activity. Programs with longer histories than offsets and far more money at stake offer valuable lessons for managing lack of additionality in offsets. The article sets out the current efforts to prove offset additionality, explains why major gov- ernment programs present comparable additionality challenges, and show why other programs’ problems of additionality are perceived as significantly different than those for offsets. We examine the toolkit used …

The Impact Of Civilian Investigative Agency Resources On The Timeliness Of Police Misconduct Investigations, Sharon Fairley

Articles

As many cities and counties turn to civilian oversight of law enforcement to enhance accountability, resource allocation is a critical issue with which police reform advocates, oversight entity administrators, and political leaders struggle almost every budget cycle. Resources are tremendously important in this context. Historically, lack of resources has been an important, if not the decisive factor leading to an oversight entity’s demise.

This Article reports on a unique and newly created dataset composed of case management and budgetary information from civilian oversight entities responsible for independent police misconduct investigations. The data were collected and analyzed to provide greater insight …

The New Outlawry, Darrell Miller, Jacob Charles

Articles

From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self- protection and the ostensible maintenance of law and order. Yet such significant authority for private violence, and the values it projects, can have tragic real-world consequences, especially for marginalized communities and people of color.

We argue that these expansions of private violence tap into an ancient form of social control—outlawry: the removal of …

Historical Analogy And The Role Morality Of Reason-Giving, Darrell Miller

Articles

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

Are They All Textualists Now?, Austin Peters

Articles

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

Amendments To The Case-Zablocki Act Concerning Reporting And Publication Of International Agreements And Related Regulations (U.S.), Curtis Bradley

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No abstract provided.

Social Rights Scapegoating, Adam Chilton, Cristián Eyzaguirre, Mila Versteeg

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No abstract provided.

The Natural Law Origins Of Private And Public Law, Richard Epstein

Articles

This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v. Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion …

It's The Procedures, Stupid: The Success And Failures Of Chile's Constitutional Convention, Tom Ginsburg, Isabel Álvarez

Articles

Chile’s experience with its Constitutional Convention from 2021 to 2022 sheds light on an important issue for comparative reflection: the role of procedures in constitution-making processes. The Constitutional Convention was bound by procedures that were both externally imposed and internally created. Our assessment is that, while some procedures improved representation and deliberation, the most important decision-making procedures were pernicious to the process. We argue that looking at procedures is fundamental when analysing constitutional processes, as the rules that bind rule-making processes can significantly impact not only their functioning, but also their outcomes.

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

Articles

Cooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

The General-Law Right To Bear Arms, William Baude, Robert Leider

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No abstract provided.

The Trouble With Classifications, Aziz Huq

Articles

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Bankruptcy By Another Name, Anthony Casey, Joshua Macey

Articles

In a recent essay, Abbe R. Gluck, Elizabeth Chamblee Burch, and Adam S. Zimmerman object to the increasing use of bankruptcy to resolve mass-tort claims. They and others are concerned that bankruptcy reduces plaintiff voice, impedes the development of state law remedies, and limits discovery that can drive state and federal regulatory interventions. This Response addresses these critiques. Contrary to popular descriptions of the bankruptcy system, bankruptcy courts do not simply aim to maximize economic efficiency and financial recoveries. Bankruptcy includes numerous procedures, including robust disclosure, bellwether trials, future-claims representatives, and voting, to ensure a fair process and promote noneconomic …

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Articles

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Layered Constitutionalism, Payvand Ahdout, Bridget Fahey

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No abstract provided.

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

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No abstract provided.

Technology, Tradition, And “The Terror Of The People”, Darrell Miller, Alexandra Filindra, Noah Kaplan

Articles

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court man- dated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of fire- arm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can …

Secrecy By Stipulation, Nora Freeman, David Freeman, Jonah Gelbach, Austin Peters, Aaron Schaffer-Neitz

Articles

GM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders—court orders that require parties to maintain the confidentiality of information unearthed during discovery—have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.

But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of “good cause.” Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does, and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree …

Imputing Unreported Hate Crimes Using Google Search Data, Aziz Huq, Dhammika Dharmapala

Articles

U.S. law requires the Attorney General to collect data on hate crime victimization from states and municipalities, but states and localities are under no obligation to cooperate by gathering or sharing information. Data production hence varies considerably across jurisdictions. This paper addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for a racial epithet. It uses two alternative benchmarks for which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and those states with statutory provisions relating to hate crime reporting. We regress rates of racially-motivated …

Brown V. Board Of Education Why Do We Need Constitutional Rights?, Geoffrey Stone

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No abstract provided.

Free Speech On The Internet: The Crisis Of Epistemic Authority, Brian Leiter

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No abstract provided.