Law Commons^™

Hegemonic Marriage: The Collision Of 'Transformative' Same-Sex Marriage With Reactionary Tax Law, Anthony C. Infanti

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Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some within the LGBTQ+ community opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. On the other hand, LGBTQ+ proponents of same-sex marriage saw marriage as a civil rights issue because of the central importance of marriage in American society. They sensed a profound wrong in the denial of the benefits of ...

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

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Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings ...

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

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This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus ...

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

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Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs ...

Antitrust Antitextualism, Daniel A. Crane

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Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and ...

Acknowledgements As A Window Into Legal Academia, Johnathan Tietz, Will Nicholson Price Ii

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Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law review articles to probe the nature of legal knowledge co-production and de facto peer review in the legal literature. Using a survey and a textual analysis of about thirty thousand law review articles from 2008 to 2017, we examined the nature of ...

Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu

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The United States is the only large federal country that does not have an explicit way to reduce the economic disparities among more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign, and the federal government does not distribute revenues to equalize the ...

Wage Theft Criminalization, Benjamin Levin

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Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes ...

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

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Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites ...

Imagining The Progressive Prosecutor, Benjamin Levin

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As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic ...

Political Justice And Tax Policy: The Social Welfare Organization Case, Philip Hackney

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In addition to valuing whether a tax policy is equitable, efficient, and administrable, I argue we should ask if a tax policy is politically just. Others have made a similar case for valuing political justice as democracy in implementing just tax policy. I join that call and highlight why it matters in one arena – tax exemption. I argue that politically just tax policy does the least harm to the democratic functioning of our government and may ideally enhance it. I argue that our right to an equal voice in collective decision making is the most fundamental value of political justice ...

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

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The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

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The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction ...

Lawyers For White People?, Jessie Allen

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This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate ...

Shareholder Primacy And The Moral Obligation Of Directors, Mark J. Loewenstein, Jay Geyer

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One of the most written-about and important topics in corporate law is the fiduciary obligations of corporate directors. Increasingly, critics of American capitalism have urged that corporations, and implicitly, corporate directors, act in a more socially responsible fashion and thus eschew the notion that shareholder primacy is the exclusive guide to a director’s fiduciary duty. Under this view, directors must consider the effect of their actions on “stakeholders” other than shareholders and be guided by morality—doing the right thing—when making business judgments.

When directors move away from shareholder primacy, however, decision-making becomes more difficult and problematic. This ...

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

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As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants ...

Deportation Arrest Warrants, Lindsay Nash

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The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants ...

Jack Weinstein: Reimagining The Role Of The District Court Judge, Jessica A. Roth

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This essay, for a symposium issue of the Federal Sentencing Reporter dedicated to the impact of Judge Jack Weinstein on the occasion of his retirement from the federal bench, highlights how Judge Weinstein has re-imagined the role of the district court judge. Through his judicial opinions, extrajudicial writings and speeches, and his innovative use of the court’s supervisory authority, Judge Weinstein has challenged, and in some cases altered, the status quo in the realm of criminal sentencing. In doing so, he has established a forceful example of how district court judges can use their position to advocate for and ...

Early Abortion Exceptionalism, Greer Donley

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Restrictive state abortion laws garner a large amount of attention in the national conversation and legal scholarship, but less known is a federal abortion policy that significantly curtails access to early abortion in all fifty states. The policy limits the distribution of mifepristone, the only drug approved to terminate a pregnancy so long as it is within the first ten weeks. Unlike most drugs, which can be prescribed by licensed healthcare providers and picked up at most pharmacies, the Food and Drug Administration only allows certified providers to prescribe mifepristone, and only allows those providers to distribute the drug to ...

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

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No abstract provided.

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

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No abstract provided.

Researching Colorado Employment Law, Jill Sturgeon

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No abstract provided.

Indigenous Peoples And Diplomacy On The World Stage, Kristen Carpenter, Alexey Tsykarev

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No abstract provided.

The Case Against Collective Liability, J. Shahar Dillbary

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Collective liability-defined as the imposition of liability on a group that may include innocent actors-is commonplace. From ancient to modem times, legislators, regulators, and courts have imposed such liability when they believe that the culprit is a member of the group. Examples of collective liability abound: from surgical teams held jointly liable for a misplaced sponge to entire families evicted from their homes for the drug-related activity of a single person under the "One Strike Rule." Courts recognize, of course, that collective liability punishes the innocent, but they view it as a necessary evil to smoke out and punish an ...

The Folly Of The Embedded Full Citation: How The Bluebook And Alwd Manuals Encourage Weak Legal Writing, Ben Bratman

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Unfortunately, the two most prominent citation guides for legal writing, the Bluebook and the ALWD Guide to Legal Citation, include provisions allowing legal writers to embed a full citation to legal authority as a grammatical element of a textual sentences. As a result, both beginning and experienced legal writers do not hesitate to burden their sentences with the clutter of full citations. Most dubiously, legal writers far too often begin the topic sentence of a paragraph with the phrase “In [case name],” followed by an embedded citation, thereby wrongly emphasizing the case name instead of the legal principle that the ...

Prisons, Nursing Homes, And Medicaid: A Covid-19 Case Study In Health Injustice, Mary Crossley

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The unevenly distributed pain and suffering from the COVID-19 pandemic present a remarkable case study. Considering why the coronavirus has devastated some groups more than others offers a concrete example of abstract concepts like “structural discrimination” and “institutional racism,” an example measured in lives lost, families shattered, and unremitting anxiety. This essay highlights the experiences of Black people and disabled people, and how societal choices have caused them to experience the brunt of the pandemic. It focuses on prisons and nursing homes—institutions that emerged as COVID-19 hotspots –and on the Medicaid program.

Black and disabled people are disproportionately represented ...

"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs

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This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and ...

Is There A Delaware Effect For Controlled Firms?, Edward Fox

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The impact of Delaware incorporation on firm value remains a central question in corporate law. Despite the difficulty scholars have had in agreeing on an answer to this question, there is a consensus that Delaware has long enjoyed stable and important advantages in the expertise of its judiciary and its extensive case law. These advantages are believed to be particularly important for firms with a controlling shareholder. This Article attempts to empirically measure the effect of Delaware incorporation on these controlled firms and thus helps us understand the market value of Delaware’s judiciary and case law. It finds, surprisingly ...

Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai

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Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

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Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in ...