Law Commons^™

All The News That’S Fit To Be Identified: Facilitating Access To High-Quality News Through Internet Platforms, Sonja R. West, Jonathan Peters, Lefteris Jason Anastasopolous

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Roughly half of Americans get some of their news from social media, and nearly two-thirds get some of their news from search engines. As our modern information gatekeepers, these internet companies bear a special responsibility to consider the impact of their platform and site policies on users’ access to high-quality news sources. They should adopt policies that clear the digital pathway between the public and press by facilitating such access. To that end, the companies must first, address the threshold issue of how best to identify high-quality news sources. This article examines factors that would be useful, drawing from legal …

Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West

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A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

Book Review: Comparative Election Law, Lori A. Ringhand

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Review of the book Comparative Election Law by James A Gardner, ed. (Cheltenham: Edward Elgar Publishing, 2022) 544 p.

Credit Scoring Duality, Pamela Foohey, Sara Sternberg Greene

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Credit scoring is central to people’s financial growth and prosperity or financial decline and stagnation. People with a good credit score and accompanying credit report can buy opportunities to advance economically. The benefits they reap from their attractiveness to lenders and employers helps feed their future success. In contrast, people with a fair or poor credit score become stuck in cycle of high interest rates and costly loan terms, large required down payments, and denied applications for rentals, cell phone plans, and employment. Employers, service providers, lenders, and alternative financial service providers have begun to use alternative credit scoring models, …

Race-Ing Antitrust, Bennett Capers, Greg Day

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Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Fintech's Role In Exacerbating Or Reducing The Wealth Gap, Pamela Foohey, Nathalie Martin

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Research shows that Black, Latinx, and other minorities pay more for credit and banking services, and that wealth accumulation differs starkly between their households and white households. The link between debt inequality and the wealth gap, however, remains less thoroughly explored, particularly in light of new credit products and debt-like banking services, such as early wage access and other fintech innovations. These innovations both hold the promise of reducing racial and ethnic disparities in lending and bring concerns that they may be exploited in ways that perpetuate inequality. They also come at a time when policy makers are considering how …

Bursting The Auto Loan Bubble In The Wake Of Covid-19, Pamela Foohey

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Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such …

Consumer Bankruptcy Should Be Increasingly Irrelevant--Why Isn't It?, Pamela Foohey

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This symposium piece is a response to Professor Nathalie Martin's Bringing Relevance Back to Consumer Bankruptcy. This response overviews the place consumer bankruptcy presently occupies in the United States. In doing so, it details why consumer bankruptcy remains relevant in the face of a socio-economic structure and of laws that suggest that bankruptcy may not be a particularly useful place for struggling Americans to turn to for help. The response ends by calling for a bolder vision for consumer bankruptcy in light of the shifting place of the bankruptcy system in America’s increasingly thread-bare social safety net.

Cares Act Gimmicks How Not To Give People Money During A Pandemic And What To Do Instead, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

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The coronavirus pandemic upturned Americans’ lives. Within the first few weeks, millions of Americans reported being laid off from their jobs. Other people were working reduced hours or were working remotely from home. Children’s daycares and schools closed, and parents were thrown into new roles as educators and full-time babysitters, while, in some instances, also continuing to work full-time jobs. The profound financial effects caused by even a few weeks of the coronavirus’ upheaval spurred Congress to pass the CARES Act, which purported to provide economic relief to individuals and businesses.

For individuals, the CARES Act includes five provisions that …

The Folly Of Credit As Pandemic Relief, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

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Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help American families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to people, without the necessity of later repayment. Or it could pursue policies that temporarily relieved people from their financial obligations, but required that they eventually pay amounts subject to payment moratoria later.

In passing the CARES Act, Congress primarily chose …

Book Review: Not Enough: Human Rights In An Unequal World, Harlan G. Cohen

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Review of the book Not Enough: Human Rights in an Unequal World. By Samuel Moyn. Cambridge, Massachusetts, Harvard University Press 2018. Pp. ix, 220. Index.

The Role Of Fault In § 1983 Municipal Liability, Michael Wells

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Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …

Lender Discrimination, Black Churches, And Bankruptcy, Pamela Foohey

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Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …

The Death Of Deference And The Domestication Of Treaty Law, Harlan G. Cohen

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How much deference do courts give to Executive branch views on treaty interpretation? The Restatement (Third) of the Foreign Relations Law of the United States tells us that courts “will give great weight to an interpretation made by the executive branch,” and earlier empirical studies suggested that deference to Executive in such cases was robust. But is that still the case? The Supreme Court’s rejection of the Executive’s view in a series of high profile cases including Hamdan v. Rumsfeld, BG Group PLC v. Republic of Argentina, and Bond v. United States should raise some doubts. This short article investigates, …

The End Of Cash, The Income Tax, And The Next 100 Years, Gregg D. Polsky, Jeffery H. Kahn

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The income tax is technologically very similar to the way it was in its early years, and technological developments have been at the margins of the income tax and have not affected its core elements. Still, technological improvements have made third-party reporting and withholding more efficient, which has allowed these mechanisms to become more pervasively used. Technology has also made it easier for taxpayers to substantiate their activities. These changes have facilitated the evolution of the incometax from its original class tax to the mass tax it is today.

While further technological advances might improve the federal income tax, it …

The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

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This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …

The Problem With Misdemeanor Representation, Erica J. Hashimoto

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The failure to appoint counsel in misdemeanor cases may represent one of the most widespread violations of federal constitutional rights in criminal cases. A decade ago, in Alabama v. Shelton, the Supreme Court held that indigent defendants sentenced to suspended terms of incarceration in misdemeanor cases have a constitutional right to appointed counsel, even if the defendant is never actually incarcerated. Several factors contribute to this omission. First, some jurisdictions have simply refused to honor the Court's holding. Second, potentially unconstitutional barriers to the appointment of counsel-including prohibitively high fees imposed on defendants, failures to fully inform defendants of their …

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

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This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for …

Towards A Communicative Theory Of International Law, Timothy L. Meyer

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Does international law's effectiveness require a clear distinction between law and non-law? This essay, which reviews Jean d'Aspremont's Formalism and the Sources of International Law, argues the answer is no. Ambiguity about the legal nature of international instruments has important benefits. Clarity in the law may encourage states to do the minimum necessary to comply, while some uncertainty about what the law requires may induce states to take extra efforts to ensure they are in compliance. Ambiguity in the law also promotes dynamic change, an important feature in rapidly developing areas of the law such as international environmental law and …

Finding International Law: Rethinking The Doctrine Of Sources, Harlan G. Cohen

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The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international …

The American Challenge To International Law: A Tentative Framework For Debate, Harlan G. Cohen

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The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay …