Digital Commons Network^™

Courts And Effective Governance, Mark Tushnet, Madhav Khosla

Faculty Scholarship

Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement …

The Essential Meaning Of The Rule Of Law, Thomas W. Merrill

Faculty Scholarship

We have heard much in recent times about the rule of law. Everyone seems to be in favor of it. Everyone seems to think that those with whom they strongly disagree are violating it. Let me remind you of a few examples.

President Obama, frustrated by Congress’s failure to adopt immigration reform, stated at a cabinet meeting that he still had a “pen and a phone.” He proceeded to announce a policy called DACA, short for Deferred Action for Childhood Arrivals, which effectively adopted a type of amnesty for some 700,000 persons who had arrived in the country as children …

Judge Williams On Administrative Law, Thomas W. Merrill

Faculty Scholarship

It is an honor to speak of Judge Williams’s contributions to administrative law. I did not know him well, but greatly enjoyed the interactions we had, either at various conferences or, more recently, as part of the American Law Institute’s Restatement Fourth of Property, of which I am an associate reporter and he was a very valued member of the advisory committee.

I nevertheless feel a strong kinship with Judge Williams since I believe he was the one judge in all the country who shared an academic background most similar to mine. He taught Administrative Law, Environmental Law, and Property …

Creating A Strong Legal Preference For Kinship Care, Joshua Gupta-Kagan

Faculty Scholarship

One new to our field would be forgiven for thinking that the law must favor placing foster children with kin rather than with strangers. After all, individuals and organizations from across the ideological spectrum endorse kinship care, government publications describe kinship care as “the preferred resource” for placing children who cannot live at home with a parent and, after steady increases over multiple decades, authorities now place more than one-third of all foster children with kin. And decades of evidence establish that kinship care is generally more stable and serves children’s health and well-being better than living with strangers, a …

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards.

Consensus Decision-Making And Legislative Inertia At The Wto: Can International Law Help?, Americo B. Zampetti, Patrick Low, Petros C. Mavroidis

Faculty Scholarship

The recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over law-making in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of …

Removing Carbon Dioxide Through Ocean Fertilization: Legal Challenges And Opportunities, Korey Silverman-Roati, Romany M. Webb, Michael Gerrard

Faculty Scholarship

Carbon dioxide removal (“CDR”) will be needed, alongside deep emissions cuts, to achieve global temperature goals. According to a 2022 report by the Intergovernmental Panel on Climate Change, to keep global average temperatures within 1.5°C above preindustrial levels, carbon dioxide and other greenhouse gas emissions must reach net-zero by mid-century. Scientists have proposed a number of land- and ocean-based CDR techniques. This paper focuses on ocean fertilization, which involves adding iron or other nutrients to the ocean to stimulate the growth of phytoplankton that uptake carbon dioxide and convert it into organic carbon. The hope is that the organic carbon …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica K. Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Millions of debt cases are filed in the civil courts every year. In debt actions, asymmetrical representation is the norm, with the plaintiff almost always represented by counsel and the defendant very rarely so. A number of jurisdictions report that up to ninety-nine percent of defendants in debt cases appear pro se — a figure that calls into question the basic legitimacy of these proceedings.

Professor Daniel Wilf-Townsend’s central contribution to the literature on debt collection, and state civil justice more broadly, is to demonstrate through sophisticated empirics what has long been anecdotally reported: that a cluster of corporate plaintiffs …

Evaluating Legal Needs, Luz Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas – a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, …

Removing Carbon Dioxide Through Artificial Upwelling And Downwelling: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

A 2022 report by the Intergovernmental Panel on Climate Change warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, emissions must reach net-zero by mid-century. The report concluded that achieving net-zero emissions will require the removal of carbon dioxide from the atmosphere “to counterbalance hard-to-abate emissions” from sectors like agriculture, aviation, and shipping. The report further noted that, if deployed at large scales, carbon dioxide removal (“CDR”) could also be used to achieve net negative emissions and thus effectively reduce the atmospheric concentration of carbon dioxide.

A variety of CDR techniques, both terrestrial and ocean-based, have been …

What Does Effective Government Have To Do With The Constitution?, Gillian E. Metzger

Faculty Scholarship

Nearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide. The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations. Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites. Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled. Another is legislative …

Practicing With Conviction: Race, Reentry, And The Legal Profession, Nicole Smith Futrell

Faculty Scholarship

Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic …

Vulnerabilities In Discovery Tech, Neel Guha, Peter Henderson, Diego A. Zambrano

Faculty Scholarship

Recent technological advances are changing the litigation landscape, especially in the discovery context. For nearly two decades, technologies have reinvented document searches in complex litigation, normalizing the use of machine learning algorithms under the umbrella of “Technology-Assisted Review” (“TAR”). The latest technological developments are placing discovery beyond attorney understanding and firmly in the realm of computer science and engineering. As lawyers struggle to keep up, a creeping sense of anxiety is spreading in the legal profession about a lack of transparency and the potential for discovery abuse. Judges, attorneys, bar associations, and scholars warn that lawyers need to closely supervise …

What Is The Law's Role In A Recession?, Gabriel Rauterberg, Joshua Younger

Faculty Scholarship

In March 2020, the world faced not only a public health emergency but also one of the most profound shocks to the global economy in the modern era — a shock deeper and broader than any other in eighty years. Never before had virtually all of the world’s economies suffered a contraction at the same time (Tooze, p. 5). Global output decreased by nearly 3.4% in 2020, the largest contraction since the Second World War. The United States saw the largest recorded demand shock in its history (-32.9%), and the unemployment rate peaked around 15% during 2020, higher than at …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – …

The Need For Social Support From Law Schools During The Era Of Social Distancing, Michele Okoh, Inès Ndonko Nnoko

Faculty Scholarship

Law students have been faced with unparalleled stress during the syndemic. They must cope with being students during the COVID-19 pandemic but also must deal with stress related to social and political unrest. This essay recommends that law schools apply social support theory in developing interventions to effectively address the needs of law students now and in the future.

Social support theory focuses on the value and benefits one receives from positive interpersonal relationships. These positive relationships impact both mental and physical health and promote beneficial short and long-term overall health. However, not all supports are the same, and social …

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.

Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and …

Race And Guns, Courts And Democracy, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Is racism in gun regulation reason to look to the Supreme Court to expand Second Amendment rights? While discussion of race and guns recurs across the briefs in New York State Rifle and Pistol Association v. Bruen, it is especially prominent in the brief of legal aid attorneys and public defenders who employed their Second Amendment arguments to showcase stories of racial bias in the enforcement of New York’s licensing and gun possession laws. Because this Second Amendment claim came from a coalition on the left, it was widely celebrated by gun rights advocates.

In this Essay we address issues …

When Do “Closed Camps” Become Prisons By Another Name?, Mara R, Revkin

Faculty Scholarship

There is an inherent tension between the widespread practice of establishing camps to provide temporary housing and humanitarian assistance to migrants and the fundamental human right to freedom of movement. According to the United Nations High Commissioner for Refugees (UNHCR), some degree of limitation on rights—including movement—is “the defining characteristic” of camps. International law permits states to impose some restrictions on the movement of migrants, including temporary confinement in “closed camps,” for lawful purposes, including identity verification and security screening in situations of war, emergency, or other grave and exceptional circumstances. But that permission is subject to important limitations: restrictions …

Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer

Faculty Scholarship

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

Against Bankruptcy Exceptionalism, Jonathan M. Seymour

Faculty Scholarship

Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to …

Enabling Esg Accountability: Focusing On The Corporate Enterprise, Rachel Brewster

Faculty Scholarship

Environmental, social, and governance accountability for companies has become an important topic in popular and academic debate in modern society. The idea that corporations should have ESG goals has been embraced by major investment companies, employees, and many corporations themselves. Yet, less attention has been focused on how corporate enterprise law—which governs how corporations structure their relationships between parent corporations and their subsidiaries—creates or contributes to the ESG concerns that the public has with corporations in the first place. Modern enterprise law allows corporations, particularly those operating across national borders, to use their subsidiaries to avoid responsibility for their public …

Forensic Science In Legal Education, Brandon L. Garrett, Glinda S. Cooper, Quinn Beckham

Faculty Scholarship

In criminal cases, forensic science reports and expert testimony play an increasingly important role in adjudication. More states now follow a federal reliability standard, following Daubert v. Merrell Dow Pharmaceuticals and Rule 702, which calls upon judges to assess the reliability and validity of such scientific evidence. Little is known about what education law schools provide regarding forensic and scientific evidence or what types of specialized training they receive on scientific methods or evidence. Whether law schools have added forensic science courses to their curricula in recent years was not known. To better understand the answers to those questions, in …

Board Gatekeepers, Yaron Nili

Faculty Scholarship

For the last decade, investors, scholars, and regulators have turned to independent directors in key leadership positions as a means to safeguard corporate boards’ ability to serve as a robust check on management’s power. As a result, a vast majority of public companies’ boards are now led by an Independent Chair, or, alternatively, include a Lead Independent Director.

These ostensible outsiders—which this Article calls “board gatekeepers”—are meant to be even more empowered and detached from management compared to the rest of the board. This allows them to serve an independent gatekeeping function—a necessary guardrail against management’s ability to exert undue …

Virtual Annual Meetings: A Path Toward Shareholder Democracy And Stakeholder Engagement, Yaron Nili, Megan Wischmeier Shaner

Faculty Scholarship

From demanding greater executive accountability to lobbying for social and environmental policies, shareholders influence how managers run modern companies. In corporate doctrine, the principal venue reserved for shareholders to influence and engage with management and each other is the annual share-holders meeting. Historically, the annual meeting was a vibrant forum for share-holder democracy and occasionally even a platform for debating pressing social issues. For decades, however, the role of the annual meeting in corporate governance has been in decline, resulting in today’s largely pro forma annual meetings. This Article explores how technological integration can resurrect the annual meeting as the …

Well-Being Measurement, Matthew D. Adler, Koen Decancq

Faculty Scholarship

The social welfare function (SWF) framework includes a well-being measure w(∙), for converting outcomes into vectors (lists) of well-being numbers. These well-being numbers are interpersonally comparable. This chapter discusses the construction of the well-being measure. It supposes that w(∙) operates on individual “histories,” a history being a combination of an attribute bundle a and a preference R. That is w(∙) = w(a, R). This setup is quite general. It encompasses preference-based well-being measures (namely those that assign well-being numbers to histories containing different bundles but the same preference in deference to that preference), as well as non-preference based measures. The …

The Future Of Ai Accountability In The Financial Markets, Gina-Gail S. Fletcher, Michelle M. Le

Faculty Scholarship

Consumer interaction with the financial market ranges from applying for credit cards, to financing the purchase of a home, to buying and selling securities. And with each transaction, the lender, bank, and brokerage firm are likely utilizing artificial intelligence (AI) behind the scenes to augment their operations. While AI’s ability to process data at high speeds and in large quantities makes it an important tool for financial institutions, it is imperative to be attentive to the risks and limitations that accompany its use. In the context of financial markets, AI’s lack of decision-making transparency, often called the “black box problem,” …

Models Of Bail Reform, Brandon L. Garrett

Faculty Scholarship

Bail reform is an urgent topic in the United States and internationally, but what constitutes reform and how to accomplish reform goals is contested. Jails are a modern epicenter of incarceration, with a stunning growth in American jail populations over the past four decades despite declines in both arrests and crime. As many as sixty percent of the half million people currently in jails have not been convicted but are instead detained pretrial. Prior waves of bail reform produced a system largely reliant on secured bonds, which require up-front cash payments to avoid jail time before trial. More recent reform …