Digital Commons Network^™

Standing And Probabilistic Injury, Curtis Bradley, Ernest Young

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Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

The Role (And Limits) Of Developmental Neuroscience In Determining Adolescents’ Autonomy Rights: The Case For Reproductive And Voting Rights, Emily Buss, Julie Maslowsky, Laura Wray-Lake

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No abstract provided.

The Bottini Saga: Why Housing Shortages Are Endemic In California, Richard Epstein

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No abstract provided.

Dynamic Diffusion, Adam Chilton, Anu Bradford, Katerina Linos

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Research on legal diffusion typically focuses on laws’ initial adoption and ignores their later evolution. We develop a typology of three subsequent diffusion patterns: convergence, when countries revise laws to move closer to leading regulators; customization, when countries revise laws to move away from leading regulators; and stagnation, when countries cease legislating, leaving initially adopted laws in place. We then propose a general theory suggesting that economic size and geographic distance from leading regulators predict which of the three patterns countries follow. We explore this theory with case studies on the dynamic diffusion of antitrust laws in Russia, Colombia, and …

Real-World Prior Art, Jonathan Masur, Lisa Ouellette

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No abstract provided.

The Magnet School Wars And The Future Of Colorblindness, Sonja Starr

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The Supreme Court’s recent decision striking down the use of race-based classifications in university admissions reflects its growing commitment to the concept of “colorblindness,” which has implications well beyond education. In anticipation, many schools and other actors are already moving toward alternative, facially race-neutral strategies for promoting diversity and reducing racial disparity. But what will happen when those policies too are challenged because they have race-related motives? Will courts soon find all race-conscious policymaking unlawful based on its ends? This is the next stage of the legal battle over colorblindness, and it is already underway.

The first wave of this …

On The Genealogy Of Intimate Digital Harm, Aziz Huq

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No abstract provided.

The Shadow Of The Law Of The Police, Adam Davidson

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No abstract provided.

The North Of Ireland During The Interregnum: A Gramcian Analysis Of Power And Crisis, Chris Ó'Rálaigh

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The North of Ireland was induced in to existence over a century ago, yet the polity lacked societal-wide legitimacy. The outbreak of conflict in 1968 signalled the beginning of an interregnal period in which the old order was substantially challenged. Whilst the Good Friday Agreement was idealised as an end to this interregnum, Brexit has re-opened the battle for politico-ideological supremacy. This paper traces the contours of the hegemony-seeking strategies of the various political actors from 1968-present and assesses whether we are in the crucial and final phase of the organic crisis of the North of Ireland.

Social Care Managers' Perspectives On Statutory Registration Of Social Care Workers In Ireland, Audrey Moore, Kevin Lalor

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The focus of this paper is social care managers' views on the impact of the statutory registration of social care workers in Ireland. The findings suggest that registration is welcomed by social care managers who believe that it will impact positively on societal recognition of social care workers as professionals and that it will improve accountability within the sector. However, the findings also suggest that there is confusion regarding information about registration and issues remain in the sector regarding multiplicity of titles, roles, and duties of social care workers. We conclude that the opening of the register is only a …

Can Community Festivals Make Urban Places More Hospitable?, Bernadette Quinn

Articles

Cultivating places and spaces to encourage sociality and foster sociocultural inclusion is a very pertinent societal challenge. Community festivals are often marshalled in the interest of making cities more hospitable for the increasing numbers of migrants, refugees, remote workers and tourists internationally on the move. This study investigates if and how community festivals are constructing hospitality through their practices. The findings are drawn from a qualitative study of two community festivals in Dublin's North East Inner City, an ethnically diverse area characterized by social disadvantage. They suggest that community festivals can make places more hospitable. However, the approaches taken to …

Populist Politics And International Business Policy: Problems, Practices, And Prescriptions For Mnes, Paul Vaaler, Christopher Hartwell, Barclay James, Thomas Lindner, Jakob Müllner

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In this editorial introduction to the Special Issue on populism, we discuss different approaches to defining populism in ways relevant to multinational enterprise (MNE) strategy and organization. In addition, we demonstrate how populist host-country government policies often target MNEs in ways that give rise to distinctly new forms of discriminatory treatment. This theoretical background sets the stage for the papers of this Special Issue, explaining the origins of these populist host-country government policies and the impact of such policies on FDI and international trade. We conclude with various suggestions for advancing IB policy research on populism, including building a better …

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 …

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

Articles

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 …

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 …

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

Articles

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 …

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 …

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 …

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 …

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

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 …

Consent Searches As Police Violence, David B. Owens

Articles

Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context …

Founder Worship, Effective Altruism, And Corporate Governance, Jennifer S. Fan, Xuan-Thao Nguyen

Articles

Founders are the heart of any startup. Oftentimes, they are given considerable latitude in managing a company, particularly if they are hailed as a visionary founder in a pathbreaking new industry. Additionally, it is assumed that underpinning their actions is the desire to do good. Unfortunately, sometimes this leads to what we term founder worship where the promise of the founder and the innovation may lead to perverse outcomes because too much control is ceded to the founder and there is a lack (or sometimes complete absence of) corporate governance. When unlimited control is coupled with "do gooderism," which in …

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

Articles

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

Articles

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: …