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Destruction, Proportionality, And Sustainability: A Law-And-Economics Analysis, Thomas F. Cotter

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This Paper undertakes a law-and-economics analysis of the remedy of destruction (and, subsidiarily, the related remedies of recall and removal) of products that infringe intellectual property (IP) rights. We begin with a brief survey of international, regional, and domestic law and practice, observing that (1) courts generally are believed to be more likely to order the destruction of copyright- and trademark-infringing goods than of patent-infringing goods, and (2) the frequency with which courts order the destruction of patent-infringing goods varies from one country to another. Our observations lead us to present two principal theses.

The first is that a comparative …

Importance And Interpretive Questions, Ilan Wurman

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In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach antiadministrativist results. One can explain at least some of the cases, however, in a way that …

Ot '22 And The Path Of Administrative Law, Ilan Wurman

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This symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to …

The Conservative Case For Esg, Richard Painter

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There is a growing consensus across the political spectrum that corporations should not just make money for shareholders but also advance the public good. Conservatives and liberals often disagree about what the public good is, or what the priorities of corporate governance should be, but both sides are discontent with corporations focusing only on profits.

This Article discusses reasons why political conservatives should support efforts to include environmental, social and governance (ESG) factors in corporate governance. Conservatives do not embrace contemporary ESG rhetoric which they associate with liberal social and economic viewpoints, but conservatives nonetheless oppose corporations maximizing profits at …

Planning For Pandemic And Epidemic-Related Scarcity Of Medicines, Sapna Kumar

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This chapter proposes an ex ante approach to tackling drug scarcity. Entities funding pandemic- and epidemic-related research should contractually require recipients to produce sufficient quantities of resulting medicines. The recipient would agree in the event of a future shortage to share its technology and know-how with a qualified third-party manufacturer, in exchange for compensation. Alternatively, funding entities could more broadly utilize dormant licenses, which activate in the event of a pandemic or epidemic, and which require rights holders to license out technology and know-how to alleviate shortages. Such provisions could go even further, integrating reasonable pricing assurances and ensuring access …

Presidential Investment In The Administrative State, Nicholas Bednar, David E. Lewis

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In this paper, we explain how presidents strategically invest in administrative capacity, noting that presidents have few incentives to invest effort in capacity building in most agencies. We test our account with two analyses. First, we examine the time it took for the Bush, Obama, Trump, and Biden Administrations to nominate individuals to appointed positions. We find that presidents prioritize appointments to policy over management positions and that nominations occur sooner in agencies that implement presidential priorities. Second, we examine the responses of federal executives to the 2020 Survey on the Future of Government Service to see whether perceptions of …

Permitting The Energy Transition, James W. Coleman

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The United States now has a landmark climate and clean energy law: the Inflation Reduction Act. The Act may provide more than a trillion dollars in spending on new clean-energy technology—over $8,000 for every household in the United States. What will Americans receive for this titanic investment? The answer largely turns on how quickly new clean-energy projects will receive permission to build.

As this Article explains, a fundamental irony of the energy system is that the cleaner energy sources we are now funding are more dependent on building far-flung infrastructure than our traditional energy sources. Coal and oil built the …

The Rise Of Counter-Terrorism And The Demise Of Human Rights, Fionnuala Niaolain

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This lecture addressed the consolidation and expansion of counter-terrorism norms and institutions since 9/11. The rise of counterterrorism has enabled the consolidation of autocracy, sustained democratic backsliding and undermined the capacity of civil society to function across the globe. The impact on human rights has been extensive and highly detrimental to the most vulnerable individuals and groups across the world. Drawing on my work as United Nations Special Rapporteur on Counter-Terrorism and Human Rights since my 2017 appointment, the lecture shows the hard choices that must be made nationally and globally to reverse these trends.

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

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Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Centralizing Pharmaceutical Innovation, Sapna Kumar

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The United States has a mostly decentralized system for promoting new medicine development. By offering patents and regulatory exclusivities, the government incentivizes pharmaceutical companies to invent and bring to market new medicines. Although this development model offers benefits for promoting innovation, it comes at a cost: Market-based incentives lead companies to prioritize research and development (“R&D”) for medicines that offer a safe path to profitability, as opposed to those that offer the greatest social benefit. In particular, pharmaceutical companies are reluctant to invest in R&D for critically-needed antibiotics and infectious disease vaccines—both of which are difficult to develop and provide …

The Original Presidency: A Conception Of Administrative Control, Ilan Wurman

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The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate offcers. That poses a possible textual problem: it seems to make the Opinions Clause superfuous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove offcers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there …

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

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The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

The Right To Fail, Alexander Boni-Saenz

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In 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own …

When An Indicted Candidate Wins The Presidency: What Happens To The Trials If Donald Trump Wins The Election?, Richard Painter, Claire Finkelstein

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For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department …

The Three-Verdict Problem, Jack Whiteley

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!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that …

Scotus House: Can A Supreme Court Ethics Lawyer And Inspector General Help Get This Fraternity Under Control?, Richard Painter

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Today, the United States Supreme Court is immersed in an ethics crisis of unprecedented proportions. Public confidence in the Court is at an all-time low and Congress is considering action. The Court is less likely to police itself than it was over fifty years ago when Justice Abraham Fortas resigned over a scandal that was probably less serious than that facing at least one justice today. This article discusses the Court’s recent scandals and explains multiple factors that make the Court prone to ethics lapses, perhaps more so than the other two branches of government. This Article then proposes that …

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

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Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …

The Seven Essential Law School Simulation Courses, Mitch Zamoff

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As we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes …

Why Mass Incarceration Is Uniquely American, Michael Tonry

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Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

Metals Derivatives Markets And The Energy Transition, James W. Coleman, Colleen M. Baker

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Despite their escalating importance, thus far, there has been minimal legal scholarship on metals derivatives markets. Given the key role of these markets in the transition to a clean energy future, increased focus on them is imperative.

Hence, it is not surprising that the agendas for the last four meetings of the Commodity Futures Trading Commission’s Energy and Environmental Markets Advisory Committee each dedicated a significant portion of the meeting to metals derivatives markets and their role in the transition to a clean energy future.

Fundamentally, the United States and the world are moving from their long-term dependence on the …

Derivatives Markets Fragilities And The Energy Transition, James W. Coleman, Colleen Baker

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It is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition representing an unprecedented international reliance on critical metals, traditionally capricious commodities traded in global markets. Indeed, nations around the world have begun to …

Redefining Public Benefits, Naomi Cahn, June R. Carbone

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This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition. The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class …

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

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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 …

Which Constitutional Provisions Are Most Important?, Adam Chilton, Richard Albert, Netta Barak-Corren, Daniel Brinks, Rosalind Dixon, Zachary Elkins, Tom Ginsburg, Ran Hirschl, David Landau, Ashley Moran, Yvonne Tew, Mila Versteeg

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National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional provisions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional studies: …

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

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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 …