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From Utopia To Apology:The European Union And The Challenge Of Liberal Supranationalism, Daniel Francis
From Utopia To Apology:The European Union And The Challenge Of Liberal Supranationalism, Daniel Francis
Faculty Articles
Amid the wealth of scholarship on European integration and its values, positive political liberty tends to languish in the background while democracy, efficiency, and other goals occupy the limelight. This short contribution aims to correct that neglect by setting out a normative approach to European integration that places positive political liberalism front and center. I offer this approach, which I call liberal supranationalism, as a complement to existing normative accounts of European integration. I make three claims. First, I claim that liberal supranationalism offers a particularly appealing normative orientation for the European project. Second, I claim that, to the extent …
Partisan Balance With Bite, Brian D. Feinstein, Daniel J. Hemel
Partisan Balance With Bite, Brian D. Feinstein, Daniel J. Hemel
Faculty Articles
Dozens of multimember agencies across the federal government are subject to partisan balance requirements, which mandate that no more than a simple majority of agency members may hail from a single party. Administrative law scholars and political scientists have questioned whether these provisions meaningfully affect the ideological composition of federal agencies. In theory, Presidents can comply with these requirements by appointing ideologically sympathetic members of the opposite party once they have filled their quota of same-party appointees (i.e., a Democratic President can appoint liberal Republicans or a Republican President can appoint conservative Democrats). No multiagency study in the past fifty …
What Are Courts For? Have We Forsaken The Procedural Gold Standard?, Arthur R. Miller
What Are Courts For? Have We Forsaken The Procedural Gold Standard?, Arthur R. Miller
Faculty Articles
This Article expands and updates my Alvin and Janice Rubin Lecture delivered at the Paul M. Hebert Law Center, Louisiana State University on March 8, 2017. I have tried to preserve its conversational style. At several points, however, that style did not translate to paper, but the substance of my remarks has not been changed. The citations are designed to be illustrative rather than exhaustive.
Widening The Lens: Refocusing The Litigation Cost-And-Delay Narrative, Arthur R. Miller
Widening The Lens: Refocusing The Litigation Cost-And-Delay Narrative, Arthur R. Miller
Faculty Articles
Lawyers are the focal point of the Judge’s Articles. But lawyers are not the only players on the litigation field, and I believe the dialogue should go beyond their behavior. To have a clearer picture of the cost-and-delay narrative, a wide-angle perspective rather than a telephoto view is necessary. What follows is an attempt to chronicle some of the legislative, judicial, and rulemaking procedural developments of the past half-century, as well as the influences of our complicated federalism. These are the tools that practicing lawyers use; I believe these developments are, at least in part, the by-products of the narrative …
Are We Running Out Of Trademarks? An Empirical Study Of Trademark Depletion And Congestion, Barton C. Beebe, Jeanne C. Fromer
Are We Running Out Of Trademarks? An Empirical Study Of Trademark Depletion And Congestion, Barton C. Beebe, Jeanne C. Fromer
Faculty Articles
American trademark law has long operated on the assumption that there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed. This core empirical assumption underpins nearly every aspect of trademark law and policy. This Article presents empirical evidence showing that this conventional wisdom is wrong. The supply of competitively effective trademarks is, in fact, exhaustible and has already reached severe levels of what we term trademark depletion and trademark congestion. We systematically study all 6.7 million trademark applications filed at the U.S. Patent and Trademark Office (PTO) from 1985 through 2016 …
Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer
Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer
Faculty Articles
To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true …
Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch
Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch
Faculty Articles
This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope. Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, self-discipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …
Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky
Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky
Faculty Articles
This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs’ recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney’s fees and costs are deductible by plaintiffs. In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the …
A Better Balance For Federal Rules Governing Public Access To Appeal Records In Immigration Cases, Nancy Morawetz
A Better Balance For Federal Rules Governing Public Access To Appeal Records In Immigration Cases, Nancy Morawetz
Faculty Articles
In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the “travel ban,” the public could follow the court process in real time, as new filings were published on the web. But this access to filings is highly unusual for immigration cases. Due to Federal Rules promulgated in 2009, there are special restrictions on access to immigration filings that mean that filings in cases that are less prominent are impossible to access electronically. Thus, as immigration enforcement continues to ratchet up, …
Mergers That Harm Sellers, C. Scott Hemphill, Nancy L. Rose
Mergers That Harm Sellers, C. Scott Hemphill, Nancy L. Rose
Faculty Articles
This Feature examines the antitrust treatment of mergers that harm sellers. We separately consider two mechanisms of harm, increased classical monopsony power and increased bargaining leverage. We show that lost upstream competition is an actionable harm to the competitive process. Our central claim is that harm to sellers in an input market is sufficient to support antitrust liability. We defend this conclusion against the contrary view that demonstrated harm to the merging firms' downstream purchasers or final consumers is an essential element of any antitrust claim. Nor is it necessary for plaintiffs to demonstrate a reduction in the input quantity …
Comment On Shaffer And Gao, Robert L. Howse
Comment On Shaffer And Gao, Robert L. Howse
Faculty Articles
Professors Shaffer and Gao, in their thoroughly researched article, challenge an assumption common in the early years of the new World Trade Organization (“WTO”) dispute settlement system: that the legalization of dispute settlement in the transformation of the General Agreement of Tariffs and Trade into the WTO would disadvantage states without strong traditions of domestic or international adversarial litigation. This was of particular concern because the legalization appeared to benefit, for example, the United States, the European Union, and Canada—all countries with considerable resources in international economic law and litigation, including resources “in house” within the government. As Shaffer and …
Inclusive Immigrant Justice: Racial Animus And The Origins Of Crime-Based Deportation, Alina Das
Inclusive Immigrant Justice: Racial Animus And The Origins Of Crime-Based Deportation, Alina Das
Faculty Articles
The merger of immigration and criminal law has transformed both systems, amplifying the flaws in each. In critiquing this merger, most scholarly accounts begin with legislative changes in the 1980s and 1990s that vastly expanded criminal grounds of deportation and eliminated many forms of discretionary relief. As a result of these changes, immigrant communities have experienced skyrocketing rates of detention and deportation, with a disparate impact on people of color. Despite increasing awareness of the harshness of the modern system, however, many people still view criminal records as a relatively neutral mechanism for identifying immigrants as priorities for detention and …
Claiming Design, Jeanne C. Fromer, Mark P. Mckenna
Claiming Design, Jeanne C. Fromer, Mark P. Mckenna
Faculty Articles
Design stands out among intellectual property subject matter in terms of the extent of overlapping protection available. Unlike other subject matter, for which different forms of intellectual property are available for different aspects of the product, design patent, trademark, and copyright protection are often available, and claimed, for precisely the same features of a design. Yet as we show, the claiming regimes of these three forms of design protection differ in significant ways: as to the timing of claims; their format, and particularly whether they are visual or verbal; their multiplicity (whether one can make multiple claims to the same …
Metamorphosis, Kenji Yoshino
Democracy's Deficits, Samuel Issacharoff
Democracy's Deficits, Samuel Issacharoff
Faculty Articles
Barely a quarter century after the collapse of the Soviet empire, democracy has entered an intense period of public scrutiny. The election of President Donald Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today …
Loving's Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray
Loving's Legacy: Decriminalization And The Regulation Of Sex And Sexuality, Melissa Murray
Faculty Articles
2017 marked the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative— decriminalizing interracial marriages and relationships and removing the most pernicious legal barriers to such couplings. But other developments suggest otherwise. If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years preceding and following Loving, …
Congress And The Executive: Challenging The Anti-Regulatory Narrative, Richard L. Revesz
Congress And The Executive: Challenging The Anti-Regulatory Narrative, Richard L. Revesz
Faculty Articles
Recently, critics of the administrative state have been urging Congress to reassert itself and rein in regulatory action that they maintain is both undesirable as a matter of policy and in violation of constitutional principles. This anti-regulatory position is unwarranted. While regulatory agencies have indeed been more active in recent decades—in part due to increasing gridlock in Congress—the resulting regulatory actions produced large net benefits to the American people and were carried out pursuant to authority delegated by Congress and reviewed by the courts. By contrast, more robust action by Congress, as long as Congress continues to exhibit its current …
The Human Right Of Property, José E. Alvarez
The Human Right Of Property, José E. Alvarez
Faculty Articles
Despite the absence of a comprehensive global pact on the subject, the human right to property protection—a right of property but only rarely to specific property—exists and is recognized in 21 human rights instruments, including some of the most widely ratified multilateral treaties ever adopted. The Cold War’s omission of property rights in the two principal treaties on human rights, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has been overtaken by events. But that reality continues to be resisted by legal scholars, including human rights advocates, as well …
Reflections On The Sandra Lockett Case, Peggy C. Davis
Reflections On The Sandra Lockett Case, Peggy C. Davis
Faculty Articles
Criminal justice systems are too often recklessly driven by crude, fearful and vengeful responses to tragic events. The story of Sandra Lockett reminds us that the law should moderate those responses and give each criminal defendant the equal respect that her life commands.
Forum-Selection Provisions In Corporate "Contracts", Helen Hershkoff, Marcel Kahan
Forum-Selection Provisions In Corporate "Contracts", Helen Hershkoff, Marcel Kahan
Faculty Articles
We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive judicial forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions. We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contract doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for …
If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha
If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha
Faculty Articles
Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges …
Is The Second Amendment A Second-Class Right?, Adam M. Samaha, Roy Germano
Is The Second Amendment A Second-Class Right?, Adam M. Samaha, Roy Germano
Faculty Articles
In the decade since District of Columbia v. Heller, results for gun rights claimants have been fairly unimpressive. The situation leaves some people concerned that judicial opposition is turning the Second Amendment into a second-class right. This paper takes up empirical elements of the concern. We compare five fields of constitutional litigation in the U.S. Courts of Appeals from 2008 through 2016: gun rights, abortion rights, affirmative action, establishment of religion, and commercial speech. In terms of success rates, we do find significant differences in attracting judge votes across some of these case sets, with gun rights claims at the …
Cutting In On The Chevron Two-Step, Catherine M. Sharkey
Cutting In On The Chevron Two-Step, Catherine M. Sharkey
Faculty Articles
Consider the following scenario: an ambiguous statutory provision could plausibly mean A or B—which could in fact be the opposite of A. A federal agency, drawing upon its scientific and/or experiential expertise, either has or could develop policy-based reasons backed by fact-intensive evidence to prefer one interpretation over the other. But instead of developing and setting forth its policy reasons and subjecting them to vetting in a notice-and-comment rulemaking, the agency instead justifies its interpretive choice in a rule, setting forth its legal analysis of statutory text, perhaps legislative history, and the purpose and structure of the statute as a …
Ethics In The Legal Industry, Michael Ariens
Ethics In The Legal Industry, Michael Ariens
Faculty Articles
A brief item in the Hearsay section of the June 2017 ABA Journal was headlined "2%." This number indicated an increase in the percentage of lawyers, from 2012 to 2016, "who worked remotely within the legal industry." Making one's "office" a location other than the physical space leased or owned by oneself or by an employer is hardly news, even as applied to the work of lawyers. Lawyers know as well as anyone that technology allows one to work almost anywhere and, unfortunately, almost any time. What is striking in this brief news item is the use by the flagship …
Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter
Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter
Faculty Articles
Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse …
Police Executive Opinions Of Legal Regulation, Roger Michalski, Stephen Rushin
Police Executive Opinions Of Legal Regulation, Roger Michalski, Stephen Rushin
Faculty Articles
By conducting a national survey, this Article empirically assesses how American police leaders perceive external legal regulation. At various times, policymakers have decried external police regulations as too expensive, too complicated, or too difficult to apply to different factual scenarios. Critics have also alleged that police regulations change too frequently, inadequately consider input from the law enforcement community, and unduly risk the safety of officers or the broader community. These complaints underscore an uncomfortable, but unavoidable reality: efforts to regulate police behavior often require policymakers to make compromises. A rule that promotes one goal may necessarily compromise another important goal. …
Sitaraman's Mistaken Case For The Middle-Class Constitution, Richard A. Epstein
Sitaraman's Mistaken Case For The Middle-Class Constitution, Richard A. Epstein
Faculty Articles
Review of Ganesh Sitaraman's The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic.
The (Not So) New Law Of The Child, Martin Guggenheim
The (Not So) New Law Of The Child, Martin Guggenheim
Faculty Articles
This is a response to the recently published article by Anne Dailey and Laura Rosenbury in the Yale Law Journal entitled The New Law of the Child. My principal response is three-fold. As much as I appreciate the effort to search for a new law of the child, in several ways, I believe these authors have failed to provide a satisfactory one. First, in their criticism of what they call “the authorities framework,” by which they mean American law that relegates most of the prominent decisions regarding children’s upbringing to parents, Dailey and Rosenbury end up proposing a substitute or …
Why Art Does Not Need Copyright, Amy M. Adler
Why Art Does Not Need Copyright, Amy M. Adler
Faculty Articles
This Article explores the escalating battles between visual art and copyright law in order to upend the most basic assumptions on which copyright protection for visual art is grounded. It is a foundational premise of intellectual property law that copyright is necessary for the “progress” of the arts. This Article demonstrates that this premise is flatly wrong when it comes to visual art. United States courts and scholars have come to understand copyright law almost universally in utilitarian terms; by this account, the reason we grant copyright to authors is to give them economic incentives to create culturally valuable works. …
Managing The Future Of The Electricity Grid: Energy Storage And Greenhouse Gas Emissions, Richard L. Revesz, Burcin Unel
Managing The Future Of The Electricity Grid: Energy Storage And Greenhouse Gas Emissions, Richard L. Revesz, Burcin Unel
Faculty Articles
Recent advances in technology and the consequent decline in manufacturing costs are making energy storage systems a central element of energy and climate change policy debates across the nation. Energy storage systems have the potential to provide many benefits such as lower electricity prices at peak demand times, deferred or avoided new capacity investments, and reduced greenhouse gas emissions. Indeed, both federal and state policymakers are enthusiastically encouraging more energy storage deployment with the belief that energy storage systems will help reduce greenhouse gas emissions from the electricity sector by making intermittent and variable renewable energy resources such as solar …