Law Commons^™

Criminal Procedure In A Time Of Abolition, Adam Davidson

Public Law and Legal Theory Working Papers

As the ranks of prison industrial complex abolitionists grow, the question of whether, and if so how, they should engage with criminal procedure doctrine becomes ever more pressing. This Essay engages Devon W. Carbado’s Unreasonable: Black Lives, Police Power, and the Fourth Amendment’s interrogation of whether to “blame” Chief Justice Warren for the expansion of the carceral state brought on by his opinion in Terry v. Ohio to begin exploring that question. It argues that while a laser-like focus on doctrine betrays an individual-focused theory of change that is likely to be both ineffective and anathema to abolitionist praxis, abolitionists …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

Public Law and Legal Theory Working Papers

No abstract provided.

The Impossibility Of Religious Equality, Zalman Rothschild

Public Law and Legal Theory Working Papers

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything—neither in terms of its essence …

Cocoa Crisis: Cartelizing West African Cocoa In Response To The Persistent Use Of Child Labor, Matthew Trevisani

Chicago Journal of International Law

The lack of resources that afflicts Ghanian and Ivorian enforcement of child labor prohibitions has allowed for the continued use of child labor in the cocoa industry. The current enforcement bodies not only suffer from serious coordination problems, but also fall victim to the harsh reality of cocoa farming, which pays pitiful daily wages to farmers. Child labor serves as a cheap, and perhaps even cost-free, option that allows farmers to maximize their profits. Many cocoa plantations are family-run, and thus the inclusion of children in the workforce is often a natural step, even where educational opportunities are available. To …

International Administrative Tribunals And Cross-Fertilization: Evidence Of A Nascent Common Jurisprudence?, Jason Morgan-Foster

Chicago Journal of International Law

The present work concerns International Administrative Tribunals (IATs), the dispute-resolution bodies between staff members and the administration of international organizations, existing at the cross-roads of international law, institutional law, and administrative law. It argues that, contrary to popular belief, the some twenty-five different IATs currently in existence are no longer functioning individually but rather citing to each other with increasing frequency and, in so doing, developing a common jurisprudence of international administrative law.

Over fifty years ago, when only a handful of IATs existed, M.B. Akehurst, a commentator in the field, made the observation that “[i]nternational administrative tribunals behave as …

Brexit Backslide: How The United Kingdom’S Break From The European Union Could Erode Female Labor Rights, Katherine Ryan

Chicago Journal of International Law

Britain’s retreat from the E.U. has demonstrated the deep connection between its domestic law and E.U. law and the dangers that can arise when a country attempts to disentangle the two. With the recent passage of the Retained E.U. Law (Revocation and Reform) Act, the resulting absence of E.U. law in British domestic law may create legal holes that leave women in the workforce without protection from discrimination. International organizations and treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Labor Organization, may be used to patch these holes. Moreover, Britain …

Originalism's Selection Problem, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

Originalism is called a “family” of theories. If that’s true, they all suffer from a congenital malady: the problem of selection. This vulnerability afflicts every branch of the family, whether we speak of original intentions originalism, original public meaning originalism, original methods originalism, or original law originalism—any originalism that descends from Attorney General Ed Meese’s legendary speech before the American Bar Association in 1985.2 To the extent originalism of any variety purports to make descriptive, falsifiable claims about language, history, tra- dition, practice, or law, all of them must confront problems common to any empirical project—what data to collect, how …

The Sweep And Force Of Section Three, William Baude, Michael Stokes Paulsen

Public Law and Legal Theory Working Papers

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by …

Occupational Licensing And Labor Market Mobility: Evidence From The Legal Profession, Adam Chilton, Jacob Goldin, Kyle Rozema, Sarath Sanga

Public Law and Legal Theory Working Papers

We study how state occupational licensing requirements shape labor mobility across U.S. legal markets. Drawing on newly collected data, we link variation in state bar exam waiver policies to lawyers’ license acquisitions, professional disciplinary records, and educational histories. We find that bar exam waivers increase the number of experienced lawyers obtaining a new license by 38 percent, but that the additional lawyers are subject to more professional discipline and tend to have graduated from less selective law schools. Our results suggest that state-level occupational licensing regimes can create a trade-off between the supply and quality of professionals in an industry.

The Law Of Information States: Evidence From China And The United States, Bridget Fahey, Yuping Lin, Taisu Zhang

Public Law and Legal Theory Working Papers

Government could not function—legally, administratively, or politically—without producing information about the population, the economy, crime, elections, public health, and more. This Article theorizes the informational incentives of political and administrative officials and the legal interventions that can control them. It then uses case studies in the United States and China to illustrate those informational dynamics in practice. Our account reveals a novel form of information regulation: government structure and, in particular, the vertical division of informational powers between levels of government, or “informational federalism.” We describe the use of informational federalism and its distinctive functions as part of the portfolio …

How Much Does U.S. Fiscal System Redistribute?, Thomas Coleman, David A. Weisbach

Public Law and Legal Theory Working Papers

There is a widespread view that the tax and transfer system has become less progressive and less redistributive. To assess this view, we compare data from three studies: Con- gressional Budget Office (2024), Piketty, Saez, Zucman (2018), and Auten and Splinter (2024). Although they use different definitions of income, units, and taxes and transfers, all three show that the tax and transfer system has become more redistributive, not less. We also review all studies of the issue since 2012, which confirms these findings. In short, there is robust evidence across definitions and methodologies, that the tax system has become more …

The Additionality Double Standard, James Salzman

Public Law and Legal Theory Working Papers

Carbon offsets are widely criticized for lacking additionality. The public debate, how- ever, has failed to recognize that the problem of additionality goes far beyond offsets. It arises any time the government subsidizes an activity. Programs with longer histories than offsets and far more money at stake offer valuable lessons for managing lack of additionality in offsets. The article sets out the current efforts to prove offset additionality, explains why major government programs present comparable additionality challenges, and show why other programs’ problems of additionality are perceived as significantly different than those for offsets. We examine the toolkit used to …

Guido Calabresi’S “Other Justice Reasons”, Adam Davidson

Public Law and Legal Theory Working Papers

No abstract provided.

Disclosure Puzzles In Patent Law, Jonathan S. Masur, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

Since its inception, patent law has required that inventors publicly disclose information about their inventions in exchange for receiving patent rights. This foundational requirement is policed through multiple doctrines: patents fail enablement if “undue experimentation” is needed to practice the invention, and they lack adequate written description when they fail to establish the inventor’s “possession” of the invention.

Despite disclosure doctrines’ centrality, fundamental puzzles about their application remain unresolved. What are the boundaries between enablement and written description? Do equivalents claimed via the doctrine of equivalents have to be enabled or described? Are the rules different for after-arising technologies? Federal …

Admissions Essays After Sffa, Sonja B. Starr

Public Law and Legal Theory Working Papers

The Supreme Court concluded its 2023 decision barring affirmative action in university admissions with a qualification: although they may not give weight to “race qua race,” universities may consider individual applicants’ discussion of race-related life experience that bears on their strengths and potential. This “essay carveout” provides a potential path forward for universities (and other entities to which the affirmative-action ban may eventually apply). But the Court also warned against using it to enact “indirect” affirmative action, and legal advocates of colorblindness stand poised to challenge any use of essays that appears to stray over this line. So where is …

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Public Law and Legal Theory Working Papers

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty- state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the …

Dispatches From Amendment Valley, Alison L. Lacroix

Public Law and Legal Theory Working Papers

No abstract provided.

The Geopolitics Of Digital Regulation, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Contemporary regulation of digital technologies by nation-states unfolds under a darkening shadow of geopolitical competition. The United States government operates simultaneously in a domestic political environment dominated by oligopolistic firms competing to expand, and in an international political environment wherein it competes with other sovereign nations by cultivating and deploying digital technological capacities for geostrategic ends. Thanks to the ensuing cross-cutting pressures, national and supranational regulation can take on surprisingly reticulated, even baroque or perverse, forms.

Three recent monographs offer illuminating and complementary maps of these geopolitical conflicts and the national responses to digital technologies upon which they rest. One …

The Shadow Of The Law Of The Police, Adam Davidson

Public Law and Legal Theory Working Papers

Joanna Schwartz’s Shielded: How the Police Became Untouchable is, in many ways, a triumph. It catalogues the laws regulating police with a breadth and depth unexpected from a book targeted to a popular audience, and it does so in gripping style. Although her ability as a researcher is well known to those who have encountered her earlier work, it is Schwartz’s ability as a storyteller that sets Shielded apart and makes the stakes of these doctrinal discussions clear. Admittedly, for those lawyers, judges, and academics who come to Shielded already familiar with Schwartz’s academic work, there is little new analytical …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lisa Yao Liu, Lior Strahilevitz

Public Law and Legal Theory Working Papers

Federal courts have long been divided over whether consumers whose data are breached suffer an “injury in fact” that gives them standing to sue under Article III of the United States Constitution. Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning about …

Occupational Licensing And Labor Market Mobility: Evidence From The Legal Profession, Adam Chilton, Jacob Goldin, Kyle Rozema, Sarath Sanga

Coase-Sandor Institute for Law & Economics Research Paper Series

We study how state occupational licensing requirements shape labor mobility across U.S. legal markets. Drawing on newly collected data, we link variation in state bar exam waiver policies to lawyers’ license acquisitions, professional disciplinary records, and educational histories. We find that bar exam waivers increase the number of experienced lawyers obtaining a new license by 38 percent, but that the additional lawyers are subject to more professional discipline and tend to have graduated from less selective law schools. Our results suggest that state-level occupational licensing regimes can create a trade-off between the supply and quality of professionals in an industry.

Colonial Experiences And Contemporary Laws, Yun-Chien Chang, Adam Chilton, Nuno Garoupa, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

Although research suggests that countries’ colonial experiences are associated with a range of contemporary outcomes, the link between colonial experiences and the substance of countries’ laws remains unclear. We explore this question while making four improvements over past research. First, we use more detailed data on both countries’ colonial experiences and contemporary substantive laws. Second, we directly assess whether countries’ shared legal origins—that is, whether they had a common law or civil law system—or their colonial origins—that is, which country had previously colonized them—are more associated with differences in their contemporary laws. Third, we use a research design that makes …

Lessons From Mediation In United States Chapter 11 Cases, Anthony Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Curious Case Of Corp Group Banking And The Problem Of Private Criminal Enforcement, Anthony J. Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Ideological Concordance Between Students And Professors, Adam Bonica, Adam Chilton, Kyle Rozema, Maya Sen

Coase-Sandor Institute for Law & Economics Research Paper Series

The largely liberal composition of American university faculties is frequently lamented in academic discourse and public debate, largely out of concern that professors “brainwash” younger generations with left-leaning principles. However, these complaints often fail to acknowledge that university students are also overwhelmingly liberal. It is thus possible that university professors are more liberal than the American public but more conservative than their students. In this article, we develop a measure of student-professor ideological concordance based on the share of faculty members who are more liberal than the students at a given school. We then use data on the ideology of …

Deconstructing The Senior Creditor, Anthony Casey, Andrew Verstein

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Additionality Double Standard, James Salzman, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Carbon offsets are widely criticized for lacking additionality. The public debate, how- ever, has failed to recognize that the problem of additionality goes far beyond offsets. It arises any time the government subsidizes an activity. Programs with longer histories than offsets and far more money at stake offer valuable lessons for managing lack of additionality in offsets. The article sets out the current efforts to prove offset additionality, explains why major gov- ernment programs present comparable additionality challenges, and show why other programs’ problems of additionality are perceived as significantly different than those for offsets. We examine the toolkit used …

A Commitment Rule For Insolvency Forum: A Response To Critics, Anthony J. Casey, Aurelio Gurrea Martínez, Robert K. Rasmussen

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Disfavored Supreme Court Precedent In The Lower Federal Courts, Curtis A. Bradley, Tara Leigh Grove

Coase-Sandor Institute for Law & Economics Research Paper Series

There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron. Almost all of this debate has concerned whether the Court should adhere to its own decisions, a matter of “horizontal” stare decisis. But potentially even more significant is the “vertical” effect of Supreme Court precedent on the lower courts, which handle almost all of the federal judicial business. If the Supreme Court expressly overturns a precedent, the lower courts will of course stop following …

Silicon Valley Bank: A Case Study In Post-Crisis Bank Failures, Anthony Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

The 2023 Silicon Valley Bank collapse was the third-largest bank failure in United States (US) history and one of the two largest since the 2008 financial crisis. This event served as the first major test for the post-crisis bank-failure regime in the US. This article evaluates how effectively that regime responded to the challenge. While some critics have questioned the effectiveness of both the regime and the US government's specific actions, others argue that the measures taken successfully mitigated systemic risk. Notably, the government felt compelled to provide discretionary depositor protection beyond what the legal framework required. This suggests that …