Digital Commons Network^™

Profiling And Consent: Stops, Searches, And Seizures After Soto, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Following Soto v. State (1999), New Jersey was the first state to enter into a Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New Jersey Turnpike …

The Curse Of Bigness: New Deal Supplement, Tim Wu

Faculty Scholarship

This is a supplement to the book, The Curse of Bigness: Antitrust in the New Gilded Age. It covers the years between 1920 - 1945, with a focus on the New Deal, and represents material left out of the original book.

It is meant to be read together with the larger volume, but can also be read separately.

Enhancing Efficiency At Nonprofits With Analysis And Disclosure, David M. Schizer

Faculty Scholarship

The U.S. nonprofit sector spends $2.54 trillion each year. If the sector were a country, it would have the eighth largest economy in the world, ahead of Brazil, Italy, Canada, and Russia. The government provides nonprofits with billions in tax subsidies, but instead of evaluating the quality of their work, it leaves this responsibility to nonprofit managers, boards, and donors. The best nonprofits are laboratories of innovation, but unfortunately some are stagnant backwaters, which waste money on out-of-date missions and inefficient programs. To promote more innovation and less stagnation, this Article makes two contributions to the literature.

First, this Article …

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …

Emergency Exemptions From Environmental Laws, Michael B. Gerrard

Faculty Scholarship

The national response to the coronavirus crisis may face several impediments but federal and state environmental laws should not be among them. Most of these laws have emergency exemptions that allow the usual (and sometimes lengthy) procedures to be bypassed, and some substantive requirements to be waived, in instances of true urgency. However, there is concern that some agencies and corporations will use this as an excuse to bypass environmental laws that aren’t actually getting in the way of responses to the crisis.

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

The Covid-19 Pandemic And Business Law: A Series Of Posts From The Oxford Business Law Blog, Gert-Jan Boon, Markus K. Brunnermeier, Horst Eidenmueller, Luca Enriques, Aurelio Gurrea-Martínez, Kathryn Judge, Jean-Pierre Landau, Marco Pagano, Ricardo Reis, Kristin Van Zwieten

Faculty Scholarship

The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.

Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times …

Covid-19 As A Force Majeure In Corporate Transactions, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

This paper surveys the use of pandemic-related provisions in Material Adverse Effects ("MAE") provisions in a large data set of publicly disclosed M&A transactions spanning the years 2003-2020. We document a trend towards greater use of such provisions, taking off particularly after the H1N1 crisis in 2009, and spiking again in late 2019 and early 2020. These terms are invariably located in the exclusions/carve-outs to the MAE, and they are overwhelmingly accompanied by "disproportionate effects" language that tends to dampen the effect of the carve out. There is little discernible statistical relationship between the inclusion of a pandemic-related carve-out and …

Private And Public Law, Thomas W. Merrill

Faculty Scholarship

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible — the discretionary decisions that individuals make in structuring their lives. Public law is concerned …

Executive Overreach And Underreach In The Pandemic, Kim Lane Scheppele, David E. Pozen

Faculty Scholarship

The pandemic that convulsed the globe in 2020 was long foretold but still surprising to many. Within a few months of its appearance, COVID-19 became one of the leading causes of death worldwide. Governments struggled at first to comprehend what was happening – and then reacted in very different ways. Most political leaders followed the advice of epidemiologists. Many declared states of emergency. A few pursued autocratic agendas. And some did almost nothing.

During emergencies, constitutional scholars normally worry about executive aggrandizement at the expense of human rights and democratic values. Emergencies often require national executives to act quickly and …

Election 2020 Sees Record $11 Billion In Campaign Spending, Mostly From A Handful Of Super-Rich Donors, Richard Briffault

Faculty Scholarship

Total spending in the 2020 federal elections is projected to set a new record of almost US$11 billion by November.

When adjusted for inflation, that’s over 50% higher than 2016 election spending. This year’s federal election spending – for the presidency, the Senate and the House of Representatives – is on track to be double what it was in 2008.

The surge in campaign spending is striking. But my research on campaign finance regulation suggests the volume of election spending is not the main problem with the U.S. campaign finance system.

The real challenge for American democracy is where this …

Decarcerating New York City: Lessons From A Pandemic, Nicole Smith Futrell

Faculty Scholarship

Over the last decade, long before the sweeping impact of COVID-19, the criminal legal system in New York City has been on a halting path toward decarceration. Set against the national backdrop of declining crime rates and a reckoning with the economic, social, and racial costs of mass criminalization and incarceration, elected officials in New York City and State have acknowledged that a shift toward reducing the number of people held in New York City jails is long overdue. Particular attention has been focused on Rikers Island, the notoriously violent, sprawling jail complex, which has been regarded as one of …

The Essential Roles Of Agency Law, Gabriel Rauterberg

Faculty Scholarship

This Article suggests a fundamental shift in how we think about agency The essential function of agency law lies not only in enabling the delegation of authority, as is widely suggested, but as significantly in its effect on creditors’ rights through asset partitioning There is an increasing temptation in legal scholarship to treat agency law as a sideshow confined to the first day of corporations class This is because much of what agency law does in commerce could simply be accomplished through standard-form contracts that provide default terms for the relationships among firms, their managers, and third parties Even agency’s …

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to …

Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele

Faculty Scholarship

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.

Federal Legislative And Administrative Framework, John C. Dernbach, Michael B. Gerrard

Faculty Scholarship

Achieving net-zero carbon emissions by 2050 will necessitate significant changes to most of America’s physical assets, from its power generation and transmission infrastructure to its buildings, vehicles, factories, forests and farms. These broad changes will need to address all four pillars of deep decarbonization – electricity decarbonization, energy efficiency and conservation, electrification of transportation and buildings, and carbon capture – supplemented by significant reductions in emissions of non-CO₂ pollutants. Such comprehensive change will necessitate the coordinated action of most of the departments of the Federal Government, from the Environmental Protection Agency (EPA) and Department of Energy (DOE) to Department of …

The Trump Administration’S Social Security Rules Will Harm Innovation In The Assistive Technology Industry And People With Disabilities, Christopher Buccafusco, Mariel Talmage

Faculty Scholarship

No abstract provided.

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …

Genetic Evidence, Maoa, And State V. Yepez, Nita A. Farahany, Roderick T. Kennedy, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Congress Must Provide Real Aid To People In The Next Stimulus Package, Pamela Foohey, Sara Sternberg Greene

Faculty Scholarship

No abstract provided.

Judging Risk, Brandon L. Garrett, John Monahan

Faculty Scholarship

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process, from policing, to pre-trial, sentencing, corrections, and during parole. As efforts to reduce incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in criminal justice outcomes. Such work has neglected how decisionmakers use risk-assessment in practice. In this Article, we examine in detail the judging of risk assessment and we study why decisionmakers so often fail to consistently use such …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji

Faculty Scholarship

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens

Faculty Scholarship

This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations.

Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar

Faculty Scholarship

A key question at the intersection of state and federal law is whether corporations can use their charters or bylaws to restrict securities litigation to federal court. In December 2018, the Delaware Chancery Court answered this question in the negative in the landmark decision Sciabacucchi v. Salzberg. The court invalidated “federal forum provisions” (“FFPs”) that allow companies to select federal district courts as the exclusive venue for claims brought under the Securities Act of 1933 (“1933 Act”). The decision held that the internal affairs doctrine, which is the bedrock of U.S. corporate law, does not permit charter and bylaw provisions …

Disuniformity Of Federal Constitutional Rights, Joseph Blocher

Faculty Scholarship

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.

Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not …

Reconciling Environmental Justice With Climate Change Mitigation: A Case Study Of Nc Swine Cafos, D. Lee Miller, Ryke Longest

Faculty Scholarship

For thirty years, the swine industry has externalized severe environmental and health harms onto poor communities of color in Eastern North Carolina. This “Big Pig” problem is caused by the confinement, consolidation, and concentration of industrial hog operations within the low, flat, and economically marginalized Coastal Plain. Big Pig’s rise was not inevitable. As recently as 1982, more than 11,000 small swine farms freckled nearly all of North Carolina’s 100 counties. Then came the “boom” of consolidation and industrialization that transformed hog production into a highly consolidated and vertically integrated industry.

Never Waste A Crisis: Anticorruption Reforms In South America, Rachel Brewster, Andres Ortiz

Faculty Scholarship

In the midst of dramatic corruption scandals, South American countries have passed some of the most noteworthy anticorruption legislation in the region’s history. This Article examines the wave of anticorruption reforms and how international law, and in particular anticorruption treaties, has had an important influence on the content of these reforms. Specifically, this Article argues that that the OECD Anti-Bribery Working Group has acted as a political entrepreneur, advocating for specific and meaningful reforms. The influence of international law was critical in ensuring that the reforms adopted during these corruption scandals were robust and that the opportunity presented by these …

Genetic Race? Dna Ancestry Tests, Racial Identity, And The Law, Trina Jones, Jessica L. Roberts

Faculty Scholarship

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA ancestry tests may affect contemporary understandings of racial identity. We argue that these tests are poor proxies for race because they fail to reflect the social, cultural, relational, and experiential norms …

Protecting Local News Outlets From Fatal Legal Expenses, Nicole J. Ligon

Faculty Scholarship

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. …