Digital Commons Network^™

Reforming State Bail Reform, Shima Baradaran Baughman

Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards

Faculty Scholarship

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

A Pandemic Instrument Can Start Turning Collective Problems Into Collective Solutions By Governing The Common-Pool Resource Of Antimicrobial Effectiveness, Isaac Weldon, Kathy Liddell, Susan Rogers Van Katwyk, Steven J. Hoffman, Timo Minssen, Kevin Outterson, Stephanie Palmer, A. M. Viens, Jorge Viñuales

Faculty Scholarship

To address the complex challenge of global antimicrobial resistance (AMR), a pandemic treaty should include mechanisms that 1) equitably address the access gap for antimicrobials, diagnostic technologies, and alternative therapies; 2) equitably conserve antimicrobials to sustain effectiveness and access across time and space; 3) equitably finance the investment, discovery, development, and distribution of new technologies; and 4) equitably finance and establish greater upstream and midstream infection prevention measures globally. Biodiversity, climate, and nuclear governance offer lessons for addressing these challenges.

The Textual Canons In Contract Cases: A Preliminary Study, Ethan J. Leib

Faculty Scholarship

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions, about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ …

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

Stress Testing During Times Of War, Kathryn Judge

Faculty Scholarship

In the spring of 2009, the United States was mired in the greatest recession it had faced since the Great Depression. In March, the Dow Jones Industrial Average had fallen to 6,594.44, a total decline of 53.4 percent from its peak in the fall of 2007. The official unemployment rate was over 9 percent and still trending upward, eventually exceeding 10 percent. With the support of Congress, the Federal Reserve (the Fed) and other financial regulators had launched an array of initiatives to contain the fallout of what had become a global financial crisis. These interventions, including a massive recapitalization …

Epilogue: The Elephant In The Room, Jamal Greene

Faculty Scholarship

This chapter explores the contrasting role of proportionality discourse in the USA and in Latin America. Although the USA provided an important constitutional model for Latin American countries, the latter does not share the former’s disinterest in the proportionality framework, which is considered foreign to the legal tradition of the country despite the fact it is arguably harmonic with the approach to law creation in the common law tradition. The chapter seeks possible explanations for the contrast in four elements: the importance in Latin America of centralized, specialized constitutional jurisdiction; the tradition of borrowing constitutional jurisprudence from abroad; the openness …

Before Equal Protection: The Fall Of Cross-Dressing Bans And The Transgender Legal Movement, Kate Redburn

Faculty Scholarship

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms – for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, …

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

The Enduring Importance Of Parental Rights, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

In this symposium contribution for The Law of Parents and Parenting, we argue that parental rights are — and should remain — the backbone of family law. State deference to parents is warranted not because parents are infallible, but rather because parental rights, properly understood and limited, promote child wellbeing. This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, …

Relying On Restatements, Shyamkrishna Balganesh

Faculty Scholarship

Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources …

Education Is Speech: Parental Free Speech In Education, Philip A. Hamburger

Faculty Scholarship

Education is speech. This simple point is profoundly important. Yet it rarely gets attention in the First Amendment and education scholarship.

Among the implications are those for public schools. All the states require parents to educate their minor children and at the same time offer parents educational support in the form of state schooling. States thereby press parents to take government educational speech in place of their own. Under both the federal and state speech guarantees, states cannot pressure parents, either directly or through conditions, to give up their own educational speech, let alone substitute state educational speech. This abridges …

The Disability Cost Narrative: A Roundtable Discussion, Elizabeth F. Emens, Kaaryn S. Gustafson, Jasmine E. Harris

Faculty Scholarship

The dominance of “cost narratives” in disability law and discourse warranted the inclusion of a scholarly roundtable discussion devoted to the topic. The transcription below captures this discussion among three disability legal scholars: Professors Elizabeth F. Emens, Kaaryn S. Gustafson, and Jasmine E. Harris.

Panel: Climate Change And Climate Justice, Alice Kaswan, Michael B. Gerrard, Monica Esparza, J.B. Ruhl

Faculty Scholarship

This article is a transcript of a panel discussion from the 2022 Richmond Public Interest Law Review's Symposium on Environmental Justice.

How Agencies Can Better Regulate For Racial Justice, Olatunde C.A. Johnson

Faculty Scholarship

On his first day in office, President Joseph R. Biden signed an executive order to advance racial equity throughout the federal government by taking a “systematic approach to embedding fairness in decision-making,” redressing inequities, and advancing equal opportunity in agency policies and programs.

This order is an important step. President Biden’s executive order promises new, proactive engagement by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and sustaining racial inequality in housing, health care, access to transit, and wealth. President …

The Legal Origins Of Catholic Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s — most especially regulations concerning the provision of contraception and …

Accommodating Parents, Joshua Gupta-Kagan

Faculty Scholarship

The child protection legal system is supposed to work towards the reunification of parents and children in foster care through individualized services to help parents raise their children safely. But that legal system has long been criticized for frequent and severe invasions into the family integrity rights of parents with disabilities and their children, treating parental disabilities as grounds for permanent separation instead of individual characteristics to be accommodated. Several years ago, it seemed that the law was turning. In 2015, the U.S. Departments of Health and Human Services and Justice issued joint guidance stating that the Americans with Disabilities …

Judicial Minimalism In Lower Courts, Thomas P. Schmidt

Faculty Scholarship

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which …

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Credit, Crises And Infrastructure: The Differing Fates Of Large And Small Businesses, Todd Baker, Kathryn Judge, Aaron Klein

Faculty Scholarship

This Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding.

At first glance, it would seem that small businesses benefitted more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection of the range …

The Institutions Of Family Law, Clare Huntington

Faculty Scholarship

Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis. This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Election Law Localism And Democracy, Richard Briffault

Faculty Scholarship

American federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of …

West Virginia V. Environmental Protection Agency: The Agency's Climate Authority, Michael B. Gerrard, Joanne Spalding, Jill Tauber, Keith Matthews

Faculty Scholarship

On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change. On March 1, the Environmental Law Institute hosted a panel of leading experts to discuss the case, the arguments, and what form the decision may take. Below, we present a transcript of that …

Law’S Contributions To The Mindfulness Revolution, Elizabeth F. Emens

Faculty Scholarship

These are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for …

Who Decides Where The Renewables Should Go?: A Response To Danielle Stokes’ Renewable Energy Federalism, Michael B. Gerrard

Faculty Scholarship

One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition — delays in state and local permitting of renewable energy facilities. She has proposed a new approach that would give more authority to the federal government. Stokes’ approach has much to commend it. However, I differ on some aspects.

I will begin by describing the magnitude of the problem — the amount …

New York Environmental Legislation In 2021, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

This annual survey of New York environmental legislation describes numerous new laws on single-use plastics, lead exposure, drinking water, fuel oil, climate resilience, solar energy, invasive species and other areas that were signed into law in 2021.

Regulation Of Polyfluoroalkyl Chemicals In New York, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds …

No Runs, Few Hits And Many Errors: Street Stops, Bias And Proactive Policing, Jeffrey A. Fagan

Faculty Scholarship

Equilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient and suggest bias. An unbiased officer who is seeking to maximize her hit rate would reduce the number of unproductive stops toward a group with the lower hit rate. An unbiased policing regime would generate no differences in hit rates between groups.

We use this framework to test for racial …

Structural Biases In Structural Constitutional Law, Jonathan S. Gould, David E. Pozen

Faculty Scholarship

Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions – not just episodically, based on who holds power at a given moment, but systematically over time – in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival …