Digital Commons Network^™

Bypassing Congress On Federal Debt: Executive Branch Options To Avoid Default, Steven L. Schwarcz

Faculty Scholarship

Even a “technical” default by the United States on its debt, such as a delay in paying principal or interest due to Congress’s failure to raise the federal debt ceiling, could have serious systemic consequences, destroying financial markets and undermining job creation, consumer spending, and economic growth. The ongoing political gamesmanship between Congress and the Executive Branch has been threatening — and even if temporarily resolved, almost certainly will continue to threaten — such a default. The various options discussed in the media for averting a default have not been legally and pragmatically viable. This article proposes new options for …

Cultivating Inclusion, Patrick S. Shin, Mitu Gulati

Faculty Scholarship

In this symposium essay in honor of critical race theory stalwart Mari Matsuda, we discuss two of her essays on affirmative action, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" and "Who is Excellent?" We draw on the insights of these essays, one written almost twenty-five years ago and the other over a decade ago, to reflect on currently prevailing justifications for affirmative action, which revolve entirely around debates about diversity. We contrast the production of racial diversity with the more robust concept of affirmative action that Matsuda advocated. We argue that the modern diversity rationale lies at …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

Santa Anna And His Black Eagle: The Origins Of Pari Passu?, Benjamin Chabot, Mitu Gulati

Faculty Scholarship

One of the most debated issues in international finance is the meaning of the pari passu clause in sovereign bonds. The clause is ubiquitous; it is in almost every single foreign-law sovereign bond out there. Yet, almost no one seems to agree on its meaning. One way to cut the Gordian knot is to track down the origins of the clause. Modern lawyers may have simply copied the clause from the documents of their predecessors without understanding its meaning. But surely the people who first drafted the clause knew what it meant. Four enterprising students at Duke Law School may …

Regulating Systemic Risk In Insurance, Daniel Schwarcz, Steven L. Schwarcz

Faculty Scholarship

As exemplified by the dramatic failure of AIG, insurance companies and their affiliates played a central role in the 2008 global financial crisis. It is therefore not surprising that the Dodd-Frank Act—the United States’ primary legislative re-sponse to the crisis—contained an entire title dedicated to insurance regulation, which has traditionally been the responsibility of individual states. The most important insurance-focused reforms in Dodd-Frank empower the Federal Reserve Bank to impose an additional layer of regulatory scrutiny on top of state insurance regulation for a small number of “systemically important” nonbank financial companies, such as AIG. This Article argues, however, that …

Do Kinship Networks Strengthen Private Property? Evidence From Rural China, Taisu Zhang, Xiaoxue Zhao

Faculty Scholarship

This paper finds that the existence of strong kinship networks tends to limit state interference with private property use in rural China by protecting villagers against unwanted government land takings. It then distinguishes kinship networks from other kinds of social networks by showing that their deterrence effect against coercive takings is far more significant and resilient under conditions of prevalent rural-urban migration than deterrence by neighborhood cooperatives and religious groups. Finally, the paper attempts to identify and differentiate between various possible mechanisms behind these effects: It argues that kinship networks protect private property usage mainly through encouraging social reciprocity between …

Tearing Out The Income Tax By The (Grass)Roots, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Missing Mcveigh, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Good Cause Requirements For Carrying Guns In Public, Joseph Blocher

Faculty Scholarship

No abstract provided.

Testing The Boundaries Of Family Privacy: The Special Case Of Pediatric Sibling Transplants, Doriane Lambelet Coleman

Faculty Scholarship

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister’s availability as an organ source. There are other transplant options—including the parents—but because the twins’ skin is “equivalent,” a “sibling transplant” is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister’s skin on “her backside from her bra line down to the bottom of her buttocks or possibly her thighs.” This procedure would be repeated up to three …

Ethnic Power Sharing: Three Big Problems, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …

Immigration's Family Values, Kerry Abrams, R. Kent Piacenti

Faculty Scholarship

No abstract provided.

Accuracy In Sentencing, Brandon L. Garrett

Faculty Scholarship

A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a "miscarriage of justice"-- that is, a claim of innocence. The Supreme Court's miscarriage of justice standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from "plain error" review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post-conviction statute for federal prisoners, and the "Savings Clause" that permits …

The Constitutional Standing Of Corporations, Brandon L. Garrett

Faculty Scholarship

Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such …

Eyewitness Identifications And Police Practices In Virginia, Brandon L. Garrett

Faculty Scholarship

Over three decades of social science research has powerfully shown that lineup procedures really matter and that eyewitness errors predictable result from substandard lineups. Yet traditionally, many police departments had no written policies at all on conducting photo arrays or lineups. In response, more police departments, prosecutors, state courts and legislatures have acted to improve identification procedures. Although much has changed in the past decade, less is known about how many police departments have not yet adopted best practices. This Essay reports the results of a 2013 survey conducted of lineup procedures in Virginia, where a new state model policy …

Applause For The Plausible, Brandon L. Garrett

Faculty Scholarship

This short essay examines the seemingly contradictory definitions and associations of the word "plausible," which the Supreme Court unexpectedly elevated to a key gatekeeping role for all of federal civil litigation in its rulings altering the pleading standard in Twombly and Iqbal. Justices, judges and commentators have not focused on what "plausible" means, for some good reasons; it carries with it connotations of the "reasonable" and the "fair" but also "superficial," "often specious" and "pretext." I can offer only a plausible defense of the seemingly contradictory meanings of this word deployed to regulate allegations in federal complaints, for which the …

Big Data And Due Process, Brandon L. Garrett

Faculty Scholarship

Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna and have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and …

The Successes And Challenges For The European Court, Seen From The Outside, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Federalism, Treaty Implementation, And Political Process: Bond V. United States, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Shadow Banking, Financial Risk, And Regulation In China And Other Developing Countries, Steven L. Schwarcz

Faculty Scholarship

Shadow banking is growing rapidly in a number of developing countries, including China where it recently was estimated at around 20 trillion yuan (which is approximately a third the size of China's bank-lending market).' The shadow banking sector in these countries is typically weakly regulated, yet the growth of the sector is thought to pose risks to financial stability. Additional regulation therefore may be needed. Any such regulation, however, should attempt to strike a balance between reducing that risk and preserving shadow banking as an important channel of alternative funding to developing economies, particularly in the face of significant retrenchment …

The New “Human Equity” Transactions, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In the past year, a number of new financial transactions (such as the Fantex, Upstart and Pave transactions) have emerged that allow individuals to raise funds by offering a percentage interest in their future earnings. Unlike traditional lending arrangements, these structures essentially enable the funding provider to take a percentage of the recipient’s future return on their human capital for a specified time period, effectively getting the upside if earnings are higher and the downside risk if earnings are lower than anticipated. Such transactions represent a significant departure from traditional forms of lending and pose serious questions for the legal …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy Meyer

Faculty Scholarship

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism's retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states-often rising or reluctant powers such as China and the United States-without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual …

The Monitor-Client Relationship, Veronica Root

Faculty Scholarship

After the government discovers wrongdoing by a corporation, the corporation and the government often enter into an agreement stating that the corporation will retain a “monitor.” A corporate compliance monitor, unlike the gatekeeper, is not charged with “monitoring” the corporation in an attempt to detect and prevent wrongdoing. A monitor, unlike the probation officer, is not solely charged with ensuring that the corporation complies with a previously determined set of requirements. Instead, a corporate compliance monitor is responsible for (i) investigating the extent of the wrongdoing already detected and reported to the government, (ii) discovering the cause of the corporation’s …

The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne

Faculty Scholarship

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological …

Judging Justice On Appeal, Marin K. Levy

Faculty Scholarship

No abstract provided.

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs

Faculty Scholarship

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

Who Can’T Raise Capital? The Scylla And Charybdis Of Capital Formation, James D. Cox

Faculty Scholarship

There has long been complaints that the heavy regulatory hand of Blue Sky Law administrators prevents capital formation by small issuers. Using data recently collected by the SEC, the article reasons that the problems capital starved small issuers encounter is not the state regulator. The problems are elsewhere. The paper explores whether intermediation may ultimately enable more startups to raise needed funds. For this to occur, however, the paper explores the formidable obstacles the broker must overcome in meeting demanding suitability requirements.

Gerald Bard Tjoflat: A Profile, Daniel S. Bowling Iii

Faculty Scholarship

No abstract provided.