Law Commons^™

California V. Texas — Ending The Campaign To Undo The Aca In The Courts, Nicholas Bagley

Articles

On June 17, 2021, the U.S. Supreme Court, by a 7-to-2 vote, rejected what will probably be the last major case seeking to uproot the Affordable Care Act (ACA). Although skirmishes over the law and its implementation will persist, the Court’s decision most likely marks an end to Republicans’ efforts to achieve in the courts what they have been unable to achieve in Congress.

Alston And The Dejudicialization Of Antitrust, Richard D. Friedman

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A curious feature of NCAA v. Alston is the shoe that didn’t drop, at least not immediately. “Put simply,” Justice Gorsuch wrote for a unanimous Court, “this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.” Given that this pronouncement occurred on page fourteen of the Court’s opinion, one might have expected that the opinion would end on, say, page fifteen, for if there has been one fixed point in American antitrust law it has been that horizontal price-fixing, especially but not only by those with monopoly power, is per se illegal. Instead, the …

The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson

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Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

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This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

The Growth & Regulatory Challenges Of Decentralized Finance, Aaron J. Wright

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Proceedings of the 2021 Spring Conference: The Impact of Blockchain on the Practice of Law Panel 1: The Growth & Regulatory Challenges of Decentralized Finance

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 …

The Rise Of Decentralized Autonomous Organizations: Opportunities And Challenges, Aaron J. Wright

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The Author explores the nature of DAOs and highlights several areas where states and regulators can adapt existing legal regimes to potentially accommodate DAOs. Part of the Blockchain & Procedural Law seminars (Max Planck Institute Luxembourg for Procedural Law).

"Benevolent Paternalism" Revisited, Daniel H. Foote

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Nearly thirty years ago, in an article entitled “The Benevolent Paternalism of Japanese Criminal Justice” (Benevolent Paternalism), I sought to set out a model for the Japanese criminal justice system, the “benevolent paternalism” model. As the label reflects, I viewed the Japanese criminal justice system as consisting of two sides, a “paternalistic” side and a “benevolent” side. This essay begins with a short summary of the model; it then turns to an examination of major developments in the intervening three decades and considers whether the model remains relevant today.

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

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This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

The Problem With Assumptions: Revisiting “The Dark Figure Of Sexual Recidivism”, Tamara Rice Lave, Jj Prescott, Grady Bridges

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What is the actual rate of sexual recidivism given the well‐ known fact that many crimes go unreported? This is a difficult and important problem, and in “The dark figure of sexual recidivism,” Nicholas Scurich and Richard S. John (2019) attempt to make progress on it by “estimat[ing] actual recidivism rates . . . given observed rates of reoffending” (p. 171). In this article, we show that the math in their probabilistic model is flawed, but more importantly, we demonstrate that their conclusions follow ineluctably from their empirical assumptions and the unrepresentative empirical research they cite to benchmark their calculations. …

Contract Design When Relationship-Specific Investment Produces Asymmetric Information, Albert H. Choi, George Triantis

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Under conventional contract theory, contracts may be efficient by protecting relationship specific investment from holdup in subsequent (re)negotiation over terms of trade. This paper demonstrates a different problem when specific investment also provides significant private information to the investing party. This is fairly common: for example, a manufacturer invests to learn about its buyer's idiosyncratic needs or a collaborator invests to learn about a joint venture. We show how such private information can lead to subsequent bargaining failure and suboptimal ex ante relationship-specific investment. We also show that this inefficiency is worse if the parties enter into a binding and …

Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness In The United States, Eric Tarst, Tamar Ezer, Melanie Ng, David Stuzin, Conor Arevalo

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This Article explores how international human rights norms and procedures can serve as a powerful tool in addressing injustice in the United States context, using work addressing the criminalization of homelessness as a case study. Moreover, it explores how civil and political rights and negative obligations by the government can serve as an entry point for asserting a more robust understanding of rights that includes social and economic rights and affirmative obligations by government. The Article documents and analyzes original work led by the National Homelessness Law Center and other pioneering advocates, reflecting on lessons learned and next steps to …

The Separation Of Voting And Control: The Role Of Contract In Corporate Governance, Gabriel V. Rauterberg

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The default rules of corporate law make shareholders’ control rights a function of their voting power. Whether a director is elected or a merger is approved depends on how shareholders vote. Yet, in private corporations shareholders routinely alter their rights by contract. This phenomenon of shareholder agreements—contracts among the owners of a firm— has received far less attention than it deserves, mainly because detailed data about the actual contents of shareholder agreements has been lacking. Private companies disclose little, and shareholder agreements are thought to play a trivial or nonexistent role in public companies. I show that this is false—fifteen …

Trade Administration, Kathleen Claussen

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At the core of public debates about trade policy making in the United States and the so-called "trade war" is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss is that underlying much of our trade policy in recent decades is a widespread executive-branch lawmaking apparatus with monitoring, rulemaking, adjudicative, and enforcement features that operates in considerable shadow. Executive branch agencies are now the primary actors in trade lawmaking. This Article excavates that critical underbelly: what I call our "trade administrative state." It maps the trade administrative state's …

Deal Protection Devices, Albert H. Choi

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In mergers and acquisitions transactions, a buyer and a seller will often agree to contractual mechanisms (deal protection devices) to deter third parties from jumping the deal and to compensate a disappointed buyer. With the help of auction theory, this Article analyzes various deal protection devices, while focusing on the two most commonly used mechanisms: match rights and target termination fees. A match right gives the buyer a right to “match” a third party’s offer so as to prevent the third party from snatching the target away, while a termination fee compensates the buyer when a third party acquires the …

Has Tax Competition Been Curbed? Reaction To L.Ahrens, L. Hakelberg & T. Rixen, Reuven Avi-Yonah

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This excellent article shows that contrary to the dire predictions of many observers, tax cooperation is still possible among OECD member countries and that such cooperation can overcome the trilemma of maintaining democracy, sustaining globalization and accepting some tax competition. Specifically, the authors show that in the realm of individual tax evasion, the advent of Automatic Exchange of Information (AEol) after the financial crisis of 2008-9 has enabled OECD countries to maintain a higher level of tax on capital than was possible before the crisis. This, in turn, enabled such countries to reduce inequality and maintain the social safety net …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

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In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Lecture In Human Rights: Tax Policy, Global Economics, Labor And Justice In Light Of Covid-19, Reuven S. Avi-Yonah

Articles

International Tax Law has extensive ramifications on the wealth gap between wealthy developed nations and poor developing nations. This divide in prosperity has been made clear again in the global response to the COVID-19 pandemic. Developing nations are currently ill-equipped to adapt to, and regulate, an equitable system of taxation on a domestic level. A further challenge is the difficulty of ensuring that foreign investors, especially multinational corporations, are able to comply with tax regulations. Developed nations such as the United States and members of the European Union must continue to work with developing nations to reduce tax evasion and …

Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle

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In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. From the 1940s through the 1960s, federal, …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

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At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Teaching Written Advocacy In A Law Clinic Setting, Tamar Ezer

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Written advocacy is a critical lawyering skill and vital component of student work in many clinics. This is certainly true in appellate advocacy and policy-based clinics, such as my own focused on human rights advocacy. Teaching written advocacy requires a deliberate and thoughtful pedagogy, just as with other aspects of clinical teaching. There is a rich literature on teaching legal writing, but only sparse discussion of its applicability in the fast-paced law clinic setting, where written products have real world consequences and need to be of high quality. This article delves into this literature and argues that written advocacy consists …

Reframing Article I, Section 8, Richard Primus

Articles

Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …

Recollections Refreshed And Recorded, Len Niehoff

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Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?

Dead Men (And Women) Should Tell Tales: Narrative, Intent, And The Construction Of Wills, Karen J. Sneddon

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The will is one of the most personal legal documents that an individual may ever create. The will is written in first person, present tense. Yet most wills reveal little of the person, the personality, or the personal. The inclusion of the testator’s relationships with people, entities, and property does little to convey the testator’s wishes, hopes, or fears. Some may assert that as a formal legal document, the will should be impersonal and be built using standardized, formulaic phrasing. Not only does such position overstate the accuracy of standardized, formulaic phrasing, but such position also ignores the foundational principle …

A Virtue Ethics Approach To Professional Identity: Lessons For The First Year And Beyond, Patrick Emery Longan, Daisy Hurst Floyd, Timothy Floyd

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We have been teaching, writing, and speaking about professional identity formation for many years. Over that period, we have arrived by various routes at a virtue ethics approach to professional identity formation. In this article, we will share our approach and include lessons for the first year of law school and beyond.

Our commitment to a virtue ethics approach did not emerge overnight. It evolved over the years and comes from our varied experiences. Pat Longan's path emerged from his experience as a teacher and scholar of professional responsibility who was asked in 2002 to develop a stand-alone course on …

Federal Land Conservation In Rural Areas, Jessica Owley, Jess Phelps

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No abstract provided.

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

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In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus

Articles

Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives …

The Mdl Revolution And Consumer Legal Funding, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

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Third-party consumer legal funding, where financial companies advance money on a nonrecourse basis to assist individual plaintiffs with living expenses, is an increasingly popular and controversial part of American litigation. And consumers with mass tort claims pending in Multi-District Litigations (MDLs) constitute the fastest growing sector of those seeking assistance from this billion-dollar funding industry. Policy makers, mass tort plaintiffs' lawyers, and scholars have increasingly raised concerns about exorbitant interest rates and have called for regulations to protect vulnerable consumers from “predatory lending.” To date, however, the policy debate has largely relied on anecdotes and speculation because flinders have not …

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

Articles

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 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. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better.

This Article looks back …