Digital Commons Network^™

Nonmarriage And Choice In South Africa And The United States, Holning Lau, Suzanne A. Kim

Faculty Publications

In this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether …

Precautionary Ratemaking, Jonas J. Monast

Faculty Publications

For more than one hundred years, states have relied on ratemaking to ensure that electric utilities deliver affordable and reliable power to their customers. This process helped keep costs down, but it also produced an electricity system that is a cause of, and vulnerable to, some of the most pressing challenges now facing society: climate change, catastrophic wildfires, extreme storms, and air and water pollution.

This Article argues that risk regulation is an alternate legal foundation for interpreting bedrock principles of ratemaking, such as prudency, reasonableness, least cost, and the public interest. The traditional economic regulator view of ratemaking evaluates …

Not Child’S Play: A Constitutional Game Of Pass The Story In Dobbs, Shurtleff, And Kennedy, John V. Orth, Paul T. Babie

Faculty Publications

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Faculty Publications

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

A Silver Lining To Russia’S Sanctions-Busting Clause, Michael Bradley, Irving De Lira Salvatierra, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 2018, Russia began inserting an unusual clause into euro and dollar sovereign bonds, seemingly designed to circumvent future Western sanctions. The clause worked by letting the government pay in roubles if sanctions cut off access to dollar and euro payment systems. The clause received little scrutiny at the time, perhaps because Russia used a state-owned bank, rather than a global investment bank, as underwriter. But with the invasion of Ukraine and the ensuing sanctions imposed by the United States and other governments, the relevance of the clause has become clear. This Essay examines how the market reacted to the …

A Debt Of Dishonor, Kim Oosterlinck, Ugo Panizza, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 1825, France conditioned its grant of recognition to the new nation of Haiti on the payment of 150 million francs plus trade benefits. The payments were, at least in part, compensation for the losses that French plantation owners suffered, a key part of which was the loss of enslaved Haitians, who took their freedom via revolution. France has officially apologized and acknowledged a “moral debt” that it owes the Haitian people. But is there a legal debt that Haiti, one of the poorest nations in the world, could claim today from France, one of the richest?

Racialized Religious School Segregation, Erika Wilson

Faculty Publications

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

A Taxonomy Of Professional Identity Formation, Harmony Decosimo

Faculty Publications

Following the ABA’s mandate requiring law schools provide students with opportunities for “professional identity formation,” this article seeks to clarify and loosely taxonomize the field of professional identity formation as it is being advanced by scholars and employed in U.S. law schools. By organizing this varied and somewhat muddled field into three dominant types or approaches and examining the primary and sometimes hidden goals of each, this article raises for review the potential pitfalls in this project, including the possibility of coercion, impotence, or waste. Ultimately, this article aims to pave the way for more constructive, transparent, and fruitful dialogue …

Systemically Important Platforms, Caleb N. Griffin

Faculty Publications

Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative debates over how Big Tech should use its power, the source of that power remains largely unexamined.

Big Tech, like Big Tobacco before it, is an industry founded on addiction. Although typically “free” to use, the world’s largest digital platforms exploit users’ dopamine pathways to …

Judges And Mass Incarceration, Carissa Byrne Hessick

Faculty Publications

This Article argues that judges—long overlooked in contemporary explanations of mass incarceration—have played a central role both through affirmative decisions that increased punishment and through failures to act as a check on prosecutorial power. It traces how judicial choices such as imposing the trial penalty, deferring to sentencing guidelines, allowing coercive plea bargaining, expanding pretrial detention, and adopting narrow or delayed statutory interpretations have structurally reshaped the criminal justice system to favor conviction and incarceration. The Article then proposes practical steps trial judges could implement immediately to reverse these trends, including reducing reliance on pretrial detention, eliminating the trial penalty, …

Saying What The Law Should Be, F. Andrew Hessick

Faculty Publications

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have …