Law Commons^™

Metaphors Of International Law, Harlan G. Cohen

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This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.

International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at …

Suspicionless Policing, Julian A. Cook

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The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

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U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

Voting Trusts And Antitrust: Rethinking The Role Of Shareholder Litigation In Public Regulation, From The 1880s To The 1930s, Laura Phillips Sawyer, Naomi R. Lamoreaux

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In 1903 the American Telephone and Telegraph Company (AT&T) bought a majority interest in the Kellogg Switchboard and Supply Company, allegedly with the aim of eliminating competition in the telephone business. Perhaps it is not remarkable that the Illinois Supreme Court ruled this acquisition of an Illinois corporation to be illegal. What is noteworthy, however, is that the court took this step at the behest of a group of Kellogg’s minority shareholders who had filed suit to block the deal. Judges had long responded skeptically to such actions, worried that shareholders would clog the courts with challenges to managers’ decisions …

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

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This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should "do something" about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …

Considering The Therapeutic Consequences Of Recent Reforms To Civil Statutes Of Limitations For Child Sexual Abuse Claims, Emma Hetherington

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In recent years, child sexual abuse has emerged as a major topic of news, documentaries, and Hollywood films. Public attention on child sexual abuse, including the Boston Globe's reporting on the sexual abuse of children by priests in the Catholic Church, sexual abuse of elite gymnasts, and the #MeToo movement, have brought increased attention to the issue, sparking calls for reform and access to justice. State legislatures across the country have answered these calls for reform by seeking to improve civil statutes of limitation in order to increase survivor access to justice. Between 2002 and 2020, forty-eight states and the …

On Command, Diane Marie Amann

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By reference to the Lieber Code and other sources, this essay emphasizes the history of responsibility underlying the doctrine of command responsibility, and further criticizes developments that seem to have intermingled that doctrine with what are called “modes of liability. The essay urges that consideration of commander responsibility stand apart from other such “modes,” and cautions against a jurisprudence that raises the risk that, before fora like the International Criminal Court, no one can be held to account. It appears in a symposium issue exploring a 2020 Cambridge University Press book by Darryl Robinson, Justice in Extreme Cases: Criminal Law …

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

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Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers …

Prosecuting Executive Branch Wrongdoing, Julian A. Cook

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Attorney General William Barr's handling of Robert Mueller's Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr's conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To …

Environmental Law, Travis M. Trimble

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In 2020,1 the United States Court of Appeals for the Eleventh Circuit held that a provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)2 that tolled statutes of limitation in state law claims did not apply to a claim brought under the Price-Anderson Act (PAA),3 providing an exclusive federal cause of action for harm resulting from exposure to radioactive materials, even though the PAA "borrows" all substantive law governing liability, including a relevant statute of limitation, from the law of the state where the harm occurred. 4 The United States District Court for the Northern District of Georgia …

Information For The Common Good In Mass Torts, Elizabeth Chamblee Burch, Alexandra D. Lahav

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In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought …

Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton

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The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons. Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted …

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 …

Digital Gatekeepers, Thomas E. Kadri

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If in William Blackstone's time we might have thought of a person's home as their castle, in Mark Zuckerberg's time we might say that their website is too. Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers--as property owners that may permit and restrict access to websites much like landowners may do with private land in the real world. If platforms withhold their consent through words or inference, cyber-trespass laws let them enforce their preferences about who may access their services and gather information from the internet. Concerned about reputations and …

Changing The Student Loan Dischargeability Framework: How The Department Of Education Can Ease The Path For Borrowers In Bankruptcy, Pamela Foohey, Aaron Ament, Daniel Zibel

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Our nation’s consumer bankruptcy system supposedly gives “honest but unfortunate” individuals “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Access to bankruptcy’s discharge of debt is especially important in the wake of the COVID-19 pandemic, which has resulted in a once-in-a-century economic crisis that is projected to increase consumer bankruptcy filings. The people who file bankruptcy will find a system that is already difficult to navigate and has long-recognized racial and gender disparities in access and outcomes. Student loan borrowers will find a system with even more …

Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani

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Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …

Mdl Revolution, Elizabeth Chamblee Burch, Abbe Gluck

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Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to …

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Ddt, “Ecologists,” Regulations, And Renewable Energy, Adam D. Orford

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Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining …

Are We (Americans) All International Realists Now?, Harlan G. Cohen

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Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …

One Child Town: The Health Care Exceptionalism Case Against Agglomeration Economies, Elizabeth Weeks

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This Article offers an extended rebuttal to the suggestion to move residents away from dying communities to places with greater economic promise. Rural America, arguably, is one of those dying places. A host of strategies aim to shore up those communities and make them more economically viable. But one might ask, “Why bother?” In similar vein, David Schleicher’s provocative 2017 Yale Law Journal article, Stuck! The Law and Economics of Residential Stagnation urged dismantling a host of state and local government laws operating as barriers to migration by Americans from failing economies to robust agglomeration economies. But Schleicher said little …

Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee

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Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …

Diversity In Mdl Leadership: A Field Guide, Elizabeth Chamblee Burch

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Multidistrict litigation (MDL) includes some of the most high-profile torts of our day—opioids, talc, RoundUp, to name a few—but the attorneys who spearhead these proceedings often look a lot like they did fifty years ago: predominately white and predominately male.

A debate has emerged over whether attorneys best positioned to fill MDL leadership roles are the grizzled repeat players who appear time and again—and who are largely white, older, and male—or newcomers with fresh ideas and energy who may not always look like their predecessors. And if diversity is important, what kind of diversity matters?

In this short essay, I …

Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe

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This chapter introduces the structure of the government in the United States and the concept of “separation of powers" among the federal, state, and local governments. It introduces core legal principles from the U.S. Constitution that frame the authority of the government to enact and enforce laws to protect and promote the public's health. These Constitutional principles are essential for the health advocate and leader to understand because every federal, state, and local law must comply with them. The core principles include the enumerated powers of the federal government and the broad plenary powers of state and local governments—which we …

How Journalists Think About The First Amendment Vis-À-Vis Their Coverage Of Hate Groups, Gregory Perreault, Jonathan Peters, Brett Johnson, Leslie Klein

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This study, based on in-depth interviews with U.S.-based journalists (n = 18), explores the increasingly fraught circumstances of reporting on hate groups. We examine how journalists think about the First Amendment vis-à-vis their coverage of such groups. Through the lens of media ecology and First Amendment principles and theories, we argue ultimately that journalists who cover hate groups use the First Amendment to identify their place in the journalistic environment.

Does The Supreme Court’S Decision In Wayfair Apply Retroactively?, Walter Hellerstein, Andrew D. Appleby

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A recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.

International Law As Behavior: An Agenda, Harlan G. Cohen, Timothy Meyer

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Over the past few decades, scholars in a variety of fields – economics, psychology, sociology, anthropology, and international relations, among others – have made enormous strides studying the behavioral roots of international law by exploring individual motivations, describing organizational cultures, and mapping communities of practice. Taken together, the work of these scholars presents a complex, nuanced understanding of how international law works. However, these projects are rarely considered together: often separated by academic enclosures and focused on different subfields within international law, communication among scholars using different methodologies is restricted. The goal of this book is to break down some …

Tax Policy And Covid-19: An Argument For Targeted Crisis Relief, Assaf Harpaz

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The COVID-19 pandemic caused a sharp global economic decline. By the end of 2021, the U.S. government responded to the downturn with record fiscal legislation totaling over $5 trillion, which includes considerable tax relief. Most notably, the U.S. government distributed over $800 billion in three rounds of advanced refundable tax credits (known as recovery rebates, or stimulus checks) to most households. Tax relief has been unprecedented in scale but has often been the product of political circumstances rather than principled policy design. Tax relief thus remains largely undertheorized and politically motivated.

This Article examines the U.S. tax policy response to …

Taxation Of The Digital Economy: Adapting A Twentieth-Century Tax System To A Twenty-First-Century Economy, Assaf Harpaz

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This Article analyzes the tax challenges of digitalization and the potential solutions to address them. This Article argues in favor of a multilateral approach and proposes applying a new tax nexus based on market thresholds subject to a global de minimis amount. As more companies conduct business online, current international tax law and its principles have failed to adapt to global commercial practices. Digital-tech giants such as Facebook, Google and Amazon have been able to exploit the international tax framework by avoiding a physical presence in the jurisdiction of their consumers. As a result, profits of highly digitalized enterprises can …

Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Gregg Polsky, Brian Galle, Andrew Lund

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As part of the most sweeping federal tax reform in a generation, the Tax Cuts and Jobs Act (“TCJA”) radically altered the tax treatment of compensation paid to senior executives of public companies. Prior to the TCJA, payment of such compensation in excess of one million dollars was non-deductible except to the extent the compensation was performance-based. The TCJA eliminated the exception so that all senior executive compensation above one million dollars is now non-deductible regardless of whether it is performance-based or not.

This reform provides a natural experiment to study the role of tax law in influencing managerial pay …