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Public Law and Legal Theory

2019

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Full-Text Articles in Law

Crazy Rich Karachi — Where The Streets Are Paved With Gold, Murtaza Irfan Ali Dec 2019

Crazy Rich Karachi — Where The Streets Are Paved With Gold, Murtaza Irfan Ali

MSJ Capstone Projects

Karachi happens to be Pakistan’s economic powerhouse but the irony is it never received its fair share of development. Which is why, to this day, I have no clue where to park, when I visit the southern district of the city. The random and sporadic parking has costed me with a hundred scratches and 2 pairs of side-view mirrors during the course of a year. So to find exactly where I could safely and “legally” park, I set out to find some answers.


General Assembly In Review 2019 Dec 2019

General Assembly In Review 2019

Richmond Public Interest Law Review

No abstract provided.


Progressive Textualism In Administrative Law, Kathryn E. Kovacs Dec 2019

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives ...


Public-Private Co-Enforcement Litigation, Stephanie Bornstein Dec 2019

Public-Private Co-Enforcement Litigation, Stephanie Bornstein

UF Law Faculty Publications

Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations. Existing scholarship details the relative advantages of these separate and parallel public or private enforcement options. Yet scholars have paid little attention to their beneficial overlap. This Article argues that recent restrictions on both halves of hybrid enforcement systems now jeopardize adequate levels of civil public law enforcement ...


Politics And Policy: Chinese Money And Its Impact On The Regulation Of Residential Property In The West, Seng Wei, Edward Ti Dec 2019

Politics And Policy: Chinese Money And Its Impact On The Regulation Of Residential Property In The West, Seng Wei, Edward Ti

Research Collection School Of Law

The narrative of Chinese real estate investors in some western jurisdictions reads like this: China has in recent decades, enjoyed burgeoning wealth creation across all strata in society. Chinese buyers are attracted to a ‘westernised’ education for their children, an agreeable and law-abiding civic society all whilst living in a clean and pleasant environment. Western real estate markets are seen as safe havens and bringing about portfolio diversification. This flood of Chinese wealth has impacted residential housing markets resulting in locals being outpriced. To combat unaffordability and housing shortages, governments have had no choice but to impose regulatory measures preventing ...


Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser Nov 2019

Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser

St. Mary's Law Journal

Abstract forthcoming


Symposium On Pofma: Parliamentary Debates About Pofma – Hansard Beyond Statutory Interpretation?, Benjamin Joshua Ong Nov 2019

Symposium On Pofma: Parliamentary Debates About Pofma – Hansard Beyond Statutory Interpretation?, Benjamin Joshua Ong

Research Collection School Of Law

The issue of a legislative response to falsehoods first drew public attention when the Select Committee on Deliberate Online Falsehoods held its public hearings. This public attention was renewed when the Protection from Online Falsehoods and Manipulation Act (“POFMA”), in Bill form, was unveiled. Questions arose among both the public and MPs about whether POFMA would grant the Government power to stifle academic research, journalism, or the expression of opinion, as well as whether it would be difficult for an individual to seek recourse against an allegedly wrongly made Direction.This post focuses not with the substance of these issues ...


Dimensions Of Delegation, Cary Coglianese Nov 2019

Dimensions Of Delegation, Cary Coglianese

Faculty Scholarship at Penn Law

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in ...


American Legion V. American Humanist Association, Seth T. Bonilla Oct 2019

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.


Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu Oct 2019

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu

U.S. Supreme Court Briefs

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific ...


Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lydia L. Butler Oct 2019

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lydia L. Butler

Florida State University Law Review

No abstract provided.


Israeli Exception-Alism: The Nation-State Law And Its Place In The Israeli Geopolitical Zeitgeist, Daniel Bral Oct 2019

Israeli Exception-Alism: The Nation-State Law And Its Place In The Israeli Geopolitical Zeitgeist, Daniel Bral

Loyola of Los Angeles International and Comparative Law Review

Israel is no stranger to the scorn of the international community. In many respects, Israel is held to a different standard than other nations. In July 2018, that hypothesis was tested when Israel’s Knesset passed The Basic Law: Israel – The Nation State of the Jewish People. Though largely symbolic, the Law declares, inter alia, “[t]he exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.” Critics lambasted the clause for allegedly violating international law by rejecting non-Jews’ right to exercise self-determination in the State of Israel. This note argues that ...


Boilerplate Indignity, Erik Encarnacion Oct 2019

Boilerplate Indignity, Erik Encarnacion

Indiana Law Journal

Commentators have long tried to sound the alarm about boilerplate contracts, pointing out threats ranging from the loss of privacy rights to the erosion of public law and democratic self-governance. This Article argues that this list of concerns misses something important: that imposing certain boilerplate terms on individuals is incompatible with their dignity. After explaining and defending the conception of dignity presupposed here, this Article shows how boilerplate accountability waivers—like arbitration clauses—prevent people from accessing the distinctive dignity-vindicating role of courts and degrade their status as legal persons. And because governments may legitimately protect dignity interests, proposed reforms ...


Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook Oct 2019

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states ...


The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow Oct 2019

The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow

Law & Economics Working Papers

Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law. The happy story is that ...


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Summary: Achieving Regulatory Excellence, Cary Coglianese Sep 2019

Summary: Achieving Regulatory Excellence, Cary Coglianese

Wharton PPI B-School for Public Policy Seminar Summaries

Regulatory excellence is governmental excellence. Three primary mechanisms exist for promoting regulatory success: Procedure, Management, and Technology. This seminar, based on research conducted at the Penn Program on Regulation, focused on analyzing the impacts of regulation on the economy and promoting the attributes of a high-quality regulatory system. An emphasis was placed on the role of legislators in overseeing and supporting the achievement of regulatory excellence, situated within the context of ongoing efforts for regulatory reform as well as new imperatives, such as the development of algorithmic technologies.


Presence Is No Present: From "Being" To "Eating" At The Table, Amiel B. Harper, Esq. Sep 2019

Presence Is No Present: From "Being" To "Eating" At The Table, Amiel B. Harper, Esq.

DePaul Journal for Social Justice

No abstract provided.


Addressing Police Accountability & Community Safety, Depaul Panel Sep 2019

Addressing Police Accountability & Community Safety, Depaul Panel

DePaul Journal for Social Justice

No abstract provided.


Welfare Reform & The Devaluation Of Women's Work, Anna Kerregan Sep 2019

Welfare Reform & The Devaluation Of Women's Work, Anna Kerregan

DePaul Journal for Social Justice

No abstract provided.


An Excerpt Of Iniquity: How Court Systems, Attorneys, And Legal Aid Organizations Cheated Homeowners In Foreclosure, Kelli Dudley Sep 2019

An Excerpt Of Iniquity: How Court Systems, Attorneys, And Legal Aid Organizations Cheated Homeowners In Foreclosure, Kelli Dudley

DePaul Journal for Social Justice

No abstract provided.


Table Of Contents, Depaul Journal For Social Justice Sep 2019

Table Of Contents, Depaul Journal For Social Justice

DePaul Journal for Social Justice

No abstract provided.


Introduction, Ezra Rosser Sep 2019

Introduction, Ezra Rosser

Contributions to Books

This is the introduction to Holes in the Safety Net: Federalism and Poverty (Ezra Rosser ed., Cambridge University Press, 2019). The table of contents for the book, with links to the other chapters, can be found below: Introduction (this document) Ezra Rosser Part I: Welfare and Federalism Ch. 1 Federalism, Entitlement, and Punishment across the US Social Welfare State Wendy Bach Ch. 2 Laboratories of Suffering: Toward Democratic Welfare Governance Monica Bell, Andrea Taverna, Dhruv Aggarwal, and Isra Syed Ch. 3 The Difference in Being Poor in Red States versus Blue States Michele Gilman Part II: States, Federalism, and Antipoverty ...


Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo Sep 2019

Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo

Faculty Scholarship at Penn Law

The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.


The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall Sep 2019

The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall

Faculty Scholarship at Penn Law

What most defines access to health care in the United States may be its stark inequity. Daily headlines in top newspapers paint the highs and lows. Articles entitled: “We Mapped the Uninsured. You’ll notice a Pattern: They tend to live in the South, and they tend to be poor” and op-eds with titles like “Do Poor People Have a Right to Health Care?” and “What it’s Like to Be Black and Pregnant when you Know How Dangerous That Can Be” run side-by-side with headlines touting “The Operating Room of the Future, and advances in gene therapy that promise ...


The Therapist Can't See You Now: How Paid Sick Leave Policy Can Accommodate Mental Illness In The Workplace, Maddy Goss Aug 2019

The Therapist Can't See You Now: How Paid Sick Leave Policy Can Accommodate Mental Illness In The Workplace, Maddy Goss

Arkansas Law Review

Restaurants have become the “poster child” for why employers should adopt paid sick leave. Advocates suggest that employees without access to paid sick leave often show up to work ill due to their inability to sacrifice pay. Clever protest signs read, “No Boogers in my Burger” and “No Coughing in my Coffee.” Any rational customer would not appreciate the thought of a flu-ridden chef assembling their main course. However, the benefits of paid leave legislation and policies go beyond protecting cheeseburgers from flu germs. Just as employees with the flu require time off for medical attention, employees with mental illness ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey Aug 2019

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspective of the "New Public Law," as we conceptualize it, is surprisingly helpful in considering this problem.

In Part I, we briefly summarize two important aspects of the New Public Law: republicanism and public choice. We then address an obvious objection to our project - that our topic relates to private law, and is therefore outside the purview of the New Public Law. Part II turns to important questions about the relationship between statutes and the common law: When should ...


Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer Aug 2019

Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer

Faculty Scholarship at Penn Law

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works ...


The Progress Of Passion, Kathryn Abrams Aug 2019

The Progress Of Passion, Kathryn Abrams

Kathryn Abrams

Like an abandoned fortress, the dichotomy between reason and the passions casts a long shadow over the domain of legal thought. Beset by forces from legal realism to feminist epistemology, this dichotomy no longer holds sovereign sway. Yet its structure helps to articulate the boundaries of the legal field; efforts to move in and around it infuse present thinking with the echoes of a conceptually distinct past. Early critics of the dichotomy may unwittingly have prolonged its influence through the frontal character of their attacks. By challenging a strong distinction between emotion and reason, critics kept it, paradoxically, before legal ...