Digital Commons Network^™

Searching For Illicit Behavior Through Changes In Productivity: The Case Of Roger Clemens And Performance-Enhancing Drugs, John Charles Bradbury

Faculty Articles

Major League Baseball pitcher Roger Clemens has been accused of using performance-enhancing drugs to boost his performance. If Clemens used ergogenic aids consistent with the accusations of use, then unusual changes in productivity may be evident in his performance record. Two previous studies have examined Clemens’s career and reached conflicting conclusions: Bradlow et al. (2008) declares Clemens’s career to be “atypical” while Albert (2009) finds Clemens’s productivity to be unusually strong but similar to other pitchers who have not been linked with performance-enhancing drugs. This study examines Clemens’s performance at times of alleged use and over his career and finds …

E-Government As A Tool For Stability And Socio-Economic Development In Post-Conflict Libya., Abdulmajid H. Mohamed

Faculty Articles

Usually, great challenges lie ahead of any post-conflict government, especially in states that have historically been under dictatorship, like Libya. It has been six years since the violent regime change that took place in Libya in 2011, yet no signs of improvement is foreseen in public service delivery and constructive citizen participation in influencing national policy formation and evaluation. In fact, the situation of public services has been worsened due to the absence of political and executive power from a strong, united government. The resulting widespread of collective frustration and political uncertainty has become a catalyst for a more defective …

Litigation As A Political Safeguard Of Federalism, Daniel Francis

Faculty Articles

When federalism scholars write about judicial review, they routinely focus on adjudication and neglect or ignore the process of litigation. Nowhere is this approach clearer than in the literature on the “safeguards” of federalism, which contrasts the “judicial safeguards” of federalism (constituted by what judges do and say at the end of judicial review proceedings) with its “political safeguards” (constituted by an array of interactions and institutional connections outside the courtroom). But the reduction of judicial review to adjudication has obscured the significance of the interactions among federal and state officials and institutions, citizens, and interested members of civil society …

Chevron Step One-And-A-Half, Daniel J. Hemel, Aaron L. Nielson

Faculty Articles

The Supreme Court says that Chevron has two steps: Is the statute ambiguous (Step One), and, if so, is the agency’s interpretation of the ambiguous provision a permissible one (Step Two)? Yet over the last three decades, the DC Circuit has inserted an intermediate step between Steps One and Two: Did the agency recognize that the statutory provision is ambiguous? If not, then the DC Circuit refuses to proceed to Chevron Step Two and remands the matter to the agency. This doctrine— which we dub “Chevron Step One-and-a-Half”—has led to dozens of agency losses in the DC Circuit and DC …

The Emerging American Police State: The Problem Is Not With The Police, But Higher Up, Wiiliam E. Nelson

Faculty Articles

This article argues that concern with reforming the police will not fully deter the emergence of an American police state or significantly reduce the misuse power of by law enforcement agencies. The police are not the problem; the problem is higher up. Undoubtedly, there are rogue police officers who commit heinous acts, up to and including murder. There are rogues in every occupation. Steps are needed to minimize the number of rogues, although they can never be entirely eliminated. It is far more important to pay close attention, not to occasional rogue police officers, but to the institutional structures and …

The Great American Dilemma: Law And The Intransigence Of Racism, Erika K. Wilson

Faculty Articles

This article is one of six written for CUNY Law Review’s inaugural cross-textual dialogue. The author was invited to write a short piece in response to the following quotation: “When you say racism, they say: it could have been something else. Sometimes you just know when it is racism. It is as tangible as hitting a wall, that the problem is you; that part of you that makes you the person they do not want or expect, the part of you than makes you stand out from the sea of whiteness. Sometimes you are not sure. And you begin to …

The Status Of The Hearer In Mr. Madison’S Neighborhood, Burt Neuborne

Faculty Articles

Current Supreme Court free speech doctrine is relentlessly speaker-centered. Even the government, usually the villain in any First Amendment story, is granted highly favorable legal status the moment it dons the speaker’s mantle. Why? It cannot be because the speaker is the only game in First Amendment town. As I have noted, a census of Mr. Madison’s First Amendment neighborhood reveals at least five prominent categories of residents: (1) speakers; (2) hearers; (3) conduits; (4) the subjects/targets; and (5) regulators, both private and public; as well as two less prominent players: the general audience and disinterested bystanders. Measured by the …

From Stopping Black People To Killing Black People: The Fourth Amendment Pathways To Police Violence, Devon W. Carbado

Faculty Articles

The years 2014 to 2016 likely will go down as a significant if not watershed period in the history of U.S. race relations. Police killing of African Americans has engendered further conversations about race and policing. Yet, in most of the discussions about these tragic deaths, little attention has been paid to a significant dimension of the police violence problem: the legalization of racial profiling in Fourth Amendment law. This legalization of racial profiling is not a sideline or peripheral feature of Fourth Amendment law. It is embedded in the analytical structure of the doctrine in ways that enable police …

The Us Approach To Recognition And Enforcement Of Awards After Set-Asides: The Impact Of The Pemex Decision, Linda J. Silberman, Nathan Yaffe

Faculty Articles

The Second Circuit’s decision in Pemex is the first federal appellate decision to confirm a foreign Convention award that was set aside at the seat of arbitration. The question of how to treat an award set aside at the seat raises common questions for nearly all New York and Panama Convention countries. The authors situate the Pemex decision against the backdrop of the various approaches to those questions taken in different jurisdictions. Although the court in Pemex described its reasoning as consistent with prior U.S. federal appellate decisions in which courts have considered a set-aside award, Pemex in fact suggests …

From Stop And Frisk To Shoot And Kill: Terry V. Ohio's Pathway To Police Violence, Devon W. Carbado

Faculty Articles

Much of the debate about race and police violence against African Americans center on a question about causation: What precisely causes police violence against African Americans? For some, the answer is decidedly simple: rogue police officers acting outside of the boundaries of the law. For others, the answer is far more complex and implicates a number of structural problems, including racial inequality. Typically, both accounts marginalize the role of law. The rogue cop story highlights bad apples, not bad laws; and the structural racial inequality story generally excludes or diminishes the role of law as a structural force that contributes …

Autonomy And Accountability: Why Informed Consent, Consumer Protection, And Defunding May Beat Conversion Therapy Bans, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Well Enough Alone: Liability For Wrongful Foreclosure, Chad J. Pomeroy

Faculty Articles

Part I of this Article both sets the stage for the current environment, in which banks and their officers and directors are under the spotlight and face an increasing amount of pressure due to their perceived role in the instigation of the Great Recession, and then examines in detail improvident lending and wrongful foreclosure, two of the wrongful acts banks have committed in connection with our current financial crisis that have generated a substantial amount of public interest and comment.

Part II examines the potential of officer and director liability for these disparate elements of the Great Recession, looking first …

Taking Steel Seizure Seriously: The Iran Nuclear Agreement And The Separation Of Powers, Samuel Estreicher, Steven Menashi

Faculty Articles

This Article examines the constitutional validity of President Obama’s decision, as part of his 2015 agreement with Iran, effectively to repeal seventeen different sanctions provisions for the fifteen-year life of the agreement. Although Congress had legislated extensively in this area, the President effected this change by entering into a “nonbinding political agreement” with Iran and by aggregating individual waiver provisions in the sanctions laws into an across-the-board waiver of sanctions. We argue that the commitments made by the President in the Iran agreement violate a fundamental separation-of-powers limit on executive power—what we term “the Steel Seizure principle,” after Youngstown—the Steel …

Pooling And Unpooling In The Uber Economy, Daniel J. Hemel

Faculty Articles

In August 2014, the online transportation network Uber launched a new service named “UberPool,” which allows Uber users to share the cost of a car ride with strangers traveling along a similar route. In a blog post announcing UberPool, the company hailed the new service as “a bold social experiment” bringing the company and its customers into a “brave new world” of ridesharing. In the two years after the August 2014 launch, more than 100 million UberPool rides were recorded, and UberPool came to account for approximately 20% of Uber trips. In that respect, Uber’s experiment in pooling was a …

Voice And Exit As Accountability Mechanisms: Can Foot-Voting Be Made Safe For The Chinese Communist Party?, Roderick M. Hills Jr., Shitong Qiao

Faculty Articles

According to Albert O. Hirschman's famous dichotomy, citizens can express their preferences with their "Voice" (by voting with ballots to elect better representatives) or by "exit" (by voting with their feet to choose better places to live). Suppose, however, that ballot-voting is ineffective: Can exit not merely aid but also replace voice? Using the People's Republic of China, a party state without elective democracy as a case study, we argue that exit is not a substitute for, but rather a complement to, voice. China's bureaucratic promotion system plays the same role that local elections do in the United States, promoting …

Corporate Governance Regulation Through Nonprosecution, Jennifer H. Arlen, Marcel Kahan

Faculty Articles

Over the last decade, federal corporate criminal enforcement policy has undergone a significant transformation. Firms that commit crimes are no longer simply required to pay fines. Instead, prosecutors and firms enter into pretrial diversion agreements (PDAs). Prosecutors regularly use PDAs to impose mandates on firms creating new duties that alter firms’ internal operations or governance structures. DOJ policy favors the use of such mandates for any firm with a deficient compliance program at the time of the crime. This Article evaluates PDA mandates to determine when and how prosecutors should use them to deter corporate crime. We find that the …

In Defense Of The Fee Simple, Katrina M. Wyman

Faculty Articles

Prominent economically oriented legal academics are currently arguing that the fee simple, the dominant form of private landownership in the United States, is an inefficient way for society to allocate land. They maintain that the fee simple blocks transfers of land to higher value uses because it provides property owners with a perpetual monopoly. The critics propose that landownership be reformulated to enable private actors to forcibly purchase land from other private owners, similar to the way that governments can expropriate land for public uses using eminent domain. While recognizing the significance of the critique, this Article takes issue with …

Outsourcing Politics: The Hostile Takeovers Of Our Hollowed-Out Political Parties, Samuel Issacharoff

Faculty Articles

In 2016, both the Republicans and Democrats experienced efforts at hostile takeover of their presidential campaigns. On the Republican side of the ledger, the takeover was successful and ultimately yielded the presidency of Donald Trump. The Democratic effort, by a candidate who never actually joined the party, was beaten back only after a long and bruising primary campaign. This Article examines some of the sources of weakness of contemporary political parties that leave them less able to control their internal party selection processes, and that further hamper their ability to govern effectively. The key insight is taken from a view …

Searching For The Common Law: The Quantitative Approach Of The Restatement Of Consumer Contracts, Oren Bar-Gill, Omri Ben-Shahar, Florencia Marotta-Wurgler

Faculty Articles

In 2012, the American Law Institute asked us to serve as reporters for a new Restatement of Consumer Contracts. Recognizing that many innovations in American contract law in the past generation occurred in the area of consumer transactions, the project seemed timely and challenging. We discovered that many of these innovations are controversial and seemingly subject to conflicting approaches in the case law and heated debates among commentators. We also discovered that prior attempts to devise a unified set of rules have largely failed. We therefore decided to take a new approach to our search for, and restatement of, the …

Dual Sovereignty Under The Constitution: How Best To Protect States Against Federal Taxation And Regulation, Richard A. Epstein

Faculty Articles

In other writings, I have made it abundantly clear that I think that all of the New Deal innovations on the commerce power and in connection with property rights and freedom of contract are fundamentally misguided insofar as they promote centralized power that allows for the massive federal destruction of competitive markets, by putting into their place a wide range of monopoly structures. It thus remains the case, for example, that the FLSA is as unconstitutional on this view of the world, both as a matter of individual rights and of federal power, as are the National Labor Relations Act, …

Bounded Rationality And The Theory Of Property, Oren Bar-Gill, Nicola Persico

Faculty Articles

Strong, property rule protection—implemented via injunctions, criminal sanctions, and supercompensatory damages—is a defining aspect of property. What is the theoretical justification for property rule protection? The conventional answer has to do with the alleged shortcomings of the weaker liability rule alternative: it is widely held that liability rule protection—implemented via compensatory damages—would interfere with efficient exchange and jeopardize the market system. We show that these concerns are overstated and that exchange efficiency generally obtains in a liability rule regime—but only when the parties are perfectly rational. When the standard rationality assumption is replaced with a more realistic bounded rationality assumption, …

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Articles

Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem arises when, as the term loses meaning, random variations in language appear and persist, resulting in what we term a “grey …

Exit Legitimacy, Daniel Francis

Faculty Articles

Although it is widely appreciated that rights of exit from a legal order can be important and valuable, there currently exists no adequate account of the relationship between exit rights and legitimacy. This Article cures that deficiency by describing the contribution made by exit rights to the legitimacy of a legal order-a contribution that I call the "exit legitimacy"of that legal order-and offers two accounts of its normative significance. On the "thin" account, exit rights operationalize consent by making it more genuine, more ascertainable, and more closely related to relevant acts and relationships of governance; on the "thick" account, exit …

Are Commercial Speech Cases Ideological? An Empirical Inquiry, Adam M. Samaha, Roy Germano

Faculty Articles

The empirical study of judicial behavior continues to grow and mature. The live challenges include specification, such as constructing useful conceptions and measures of ideology, mapping particular domains in which identifiable forces influence decisions, and quantifying the magnitudes of those influences. To make progress on these challenges, we roll out new and expanded datasets that build on the work of Cass Sunstein, Lee Epstein, Gregory Sisk, and others, and we report on the character of constitutional litigation today. Our datasets cover U.S. Court of Appeals decisions in five domains: (1) commercial speech, (2) gun rights, (3) abortion rights, (4) establishment …

The Real Doctrine & Covenants, Chad J. Pomeroy

Faculty Articles

Developers have recently begun creating, and attaching to the property they sell to consumers, what is known as a "recovery fee." These recovery fees are "new" in that most lawyers are not familiar with them and in that they seem to operate in a novel manner and are bottomed on novel claims. In essence, they create and levy a fee on subsequent owners each time the property is transferred, which fee purports to reimburse developers for infrastructure and other development costs. Because they seem new, and because they involve transfers from relatively small and unsophisticated parties to relatively large and …

¡Que Viva The Scholar!, Bill Piatt

Faculty Articles

This piece congratulates The Scholar on their 20th anniversary and explains some of the impetus involved with the journal's beginnings.

Can We Act Globally While Thinking Locally: Responding To Stella Burch Elias, The Perils And Possibilities Of Refugee Federalism, Kit Johnson

Faculty Articles

In The Perils and Possibilities of Refugee Federalism, Professor Stella Burch Elias skillfully exposes both the dangers and the opportunities presented by state responses to the resettlement of refugees within their borders. She concludes that states are prohibited from excluding refugees from their territory, but she argues that states have a previously untapped opportunity to legislate at the local level in an effort to promote the integration of refugees into their communities. This Response does not challenge those conclusions. Rather, this Response seeks to provide context to the idea of refugee federalism by further discussing the problem, acknowledged by Professor …

Indigenizing Equality, M. Alexander Pearl, Kyle Velte

Faculty Articles

Notwithstanding the significant victories of the LGBT civil rights movement over the past 20 years, culminating in the declaration of full marriage equality in Obergefell v. Hodges, anti-LGBT sentiment generally, and anti-marriage-equality sentiment in particular, continue to run deep. One pocket of resistance is in some tribal communities. While Obergefell unequivocally resolved the problem of the “patchwork quilt” of marriage equality among the states, the problem of gaps in marriage equality among Tribal Nations has left the problem of the “patchwork quilt” intact. This article answers the question: What is the effect of federal marriage equality on the modern expression …

Reverse Passing, Khaled A. Beydoun, Erika K. Wilson

Faculty Articles

Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political, and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form, the corollary process of reverse passing—the process in which whites conceal their true racial identity and present themselves as nonwhite—has not been closely investigated within legal scholarship. Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal—an Africana Studies Instructor and head of the Spokane, Washington NAACP—was outed …

Our Criminal Laws, Our Constitution, Sarah A. Seo

Faculty Articles

Reviewing: Risa Goluboff, Vagrant Nation (Oxford University Press 2016); Thomas Andrew Green, Freedom and Criminal Responsibility in American Legal Thought (Cambridge University Press 2014); James B. Jacobs, The Eternal Criminal Record (Harvard University Press 2015).