Law Commons^™

State Digital Services Taxes: A Good And Permissible Idea (Despite What You Might Have Heard), Young Ran (Christine) Kim, Darien Shanske

Articles

Tax systems have been struggling to adapt to the digitalization of the economy. At the center of the struggles is taxing digital platforms, such as Google or Facebook. These immensely profitable firms have a business model that gives away “free” services, such as searching the web. The service is not really free; it is paid for by having the users watch ads and tender data. Traditional tax systems are not designed to tax such barter transactions, leaving a gap in taxation.

One response, pioneered in Europe, has been the creation of a wholly new tax to target digital platforms: the …

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

Articles

This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Wto Security Exceptions: A Sliding Scale Approach To Protect The Rules-Based System For Global Free Trade, Ts Somashekar, Kanchan Yadav

Articles

Since the enforcement of the General Agreement on Tariffs and Trade (GATT) in 1947 and subsequently with the establishment of the World Trade Organization, the global community has been moving towards a more secure and rule-based international trade law regime. The cornerstones of the system are predictability and transparency, which ensure that a state, no matter how powerful, cannot undertake a discriminatory trade measure against another going above and beyond the rules. However, the recent instances of unilateral invocation of the security exceptions found in the various trade agreements endanger the very basis of the WTO system. The very first …

Dynamic Pricing Algorithms, Consumer Harm, And Regulatory Response, Alexander Mackay, Samuel Weinstein

Articles

Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose are far broader than collusive conduct. It demonstrates that algorithmic pricing can lead to higher prices for consumers in competitive markets and even in the absence of collusion. This consumer harm can be initiated by a single firm employing a superior pricing algorithm. Higher prices arise from …

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw

Articles

This piece offers an extended critique of one aspect of the so-called "independent state legislature" theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I's Elections Clause, which provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article H's Presidential Electors Clause, which provides that "[e]ach State shall appoint, in such Manner as the Legislature …

Open-Source Clinical Machine Learning Models: Critical Appraisal Of Feasibility, Advantages, And Challenges, Keerthi B. Harish, W. Nicholson Price Ii, Yindalon Aphinyanaphongs

Articles

Machine learning applications promise to augment clinical capabilities and at least 64 models have already been approved by the US Food and Drug Administration. These tools are developed, shared, and used in an environment in which regulations and market forces remain immature. An important consideration when evaluating this environment is the introduction of open-source solutions in which innovations are freely shared; such solutions have long been a facet of digital culture. We discuss the feasibility and implications of open-source machine learning in a health care infrastructure built upon proprietary information. The decreased cost of development as compared to drugs and …

Due Process Alignment In Mass Restructurings, Sergio J. Campos, Samir D. Parikh

Articles

Mass tort defendants have recently begun exiting multidistrict litigation by filing for bankruptcy. This new strategy ushers defendants into a far more hospitable forum that offers accelerated resolution of all state and federal claims held by both current and future victims.

Bankruptcy's structural, procedural, and substantive benefits also provide defendants with unique optionality. Bankruptcy's resolution promise is alluring, but the process relies on a very large assumption: that future victims can be compelled to relinquish property rights in their cause of action against the corporate defendant and others without consent or notice. Bankruptcy builds an entire resolution structure on the …

The Improvised Implementation Of Executive Agreements, Kathleen Claussen

Articles

Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies' implementation of legislative mandates, and another equally robust line of scholarship considers Congress's implementation of treaties. Missing from those discussions, however, is another area of implementation central to U. S. foreign relations: the implementation of transnational regulatory agreements.

This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options, much like they do in the domestic …

An Evidence Review Of Behavioural Economics In The Justice Sector, Brian Barry, Lucia Morales, Aiden Carthy

Articles

Behavioural economics combines elements of economics and psychology to better understand how and why people behave the way they do in the real world. While behavioural economics originally sought to better understand economic decision-making, it has since grown in scope and application, and it is increasingly used by governments, government departments and other organisations to shape and implement public policies in a range of policy areas. This Review considers the application of behavioural economics theories and concepts (commonly referred to as behavioural insights) to the justice sector in a range of areas of justice policy in different jurisdictions. Areas of …

Just Say No? Shareholder Voting On Securities Class Actions, Albert H. Choi, Stephen J. Choi, Adam C. Pritchard

Articles

The U.S. securities laws allow security-holders to bring a class action suit against a public company and its officers who make materially misleading statements to the market. The class action mechanism allows individual claimants to aggregate their claims. This procedure mitigates the collective action problem among claimants, and also creates potential economies of scale. Despite these efficiencies, the class action mechanism has been criticized for being driven by attorneys and also encouraging nuisance suits. Although various statutory and doctrinal solutions have been proposed and implemented over the years, the concerns over the agency problem and nuisance suits persist. This paper …

Democracy Harms And The First Amendment, Deborah Pearlstein

Articles

The First Amendment tolerates—has long tolerated—the regulation of certain kinds of false speech. Indeed, regulable lies are not limited to traditionally less-protected categories of speech like defamation and commercial deception. They include an array of other established speech regulations, administered by government institutions every day, from criminal laws barring perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for false or otherwise objectionable speech. Yet while it is easy to identify the kinds of lies that existing doctrinal categories make regulable for the personal, physical, or reputational harms they inflict on individuals¸ it has …

Collaborative Constructions: Designing High School History Curriculum With The Lost & Found Game Series, Owen Gottlieb, Shawn Clybor

Articles

This chapter addresses design research and iterative curriculum design for the Lost & Found games series. The Lost & Found card-to-mobile series is set in Fustat (Old Cairo) in the twelfth century and focuses on religious laws of the period. The first two games focus on Moses Maimonides’ Mishneh Torah, a key Jewish law code. A new expansion module which was in development at the time of the fieldwork described in this article that introduces Islamic laws of the period, and a mobile prototype of the initial strategy game has been developed with support National Endowment for the Humanities. The …

Ma'ii And Nanaboozhoo Fistfight In Heaven, Tamera Begay, Matthew Fletcher

Articles

In the form of a cute, cuddly, and innocent waabooz, Nanaboozhoo munched on the chewy, bitter Tłohdá’ákáłiitsoh he found everywhere in this⁣ land, far from his own. Although, it was a bit dry. In this land, Dinétah,⁣ Nanaboozhoo thought he could see forever. There were few trees. The sky⁣ was bright blue and limitless. The air smelled like a kind of dirt he had never⁣ experienced. And, boy howdy, was it dry. He couldn’t smell water for the⁣ life of him. But there was water, to be sure, or else there wouldn’t be this⁣ bush.

Employment Trajectories And Mental Health-Related Disability In Belgium, Sudipa Sarkar, Rebeka Balogh, Sylvie Gadeyne, Johanna Jonsson Et Al.

Articles

An individual’s quality of employment over time has been highlighted as a potential determinant of mental health. With mental ill-health greatly contributing to work incapacities and disabilities in Belgium, the present study aims to explore whether mental health, as indicated by registered mental health-related disability, is structured along the lines of employment quality, whereby employment quality is assessed over time as part of individuals’ labour market trajectories.

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

Jotwell's Thirteenth Birthday Celebration, A. Michael Froomkin

Articles

No abstract provided.

Generalized Creditors And Particularized Creditors: Against A Unified Theory Of Standing In Bankruptcy, David G. Carlson, Jeanne L. Schroeder

Articles

Courts have struggled toward a unified theory to explain when the trustee has exclusive jurisdiction to sue a third party for harms done to a bankrupt debtor, and when creditors have exclusive jurisdiction to sue the third party. Courts have proclaimed that when every creditor can sue the third party, then none of them can, and the right belongs solely to the trustee. Creditor rights are “generalized.” If only a proper subset of creditors can sue the third party, then the trustee is not able to subrogate to the subset. Such creditors are “particularized.” This paper proclaims the test a …

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

Articles

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …

Highly Automated Vehicles & Discrimination Against Low-Income Persons, William H. Widen

Articles

Law reform in the United States often reflects a structural bias that advances narrow business interests without addressing broader public interest concerns.' This bias may appear by omitting protective language in laws or regulations which address a subject matter area, such as permitting the testing of highly automated vehicles ("HA Vs") on public roads, while omitting a requirement for a reasonable level of insurance as a condition to obtain a testing permit.2 This Article explores certain social and economic justice implications of laws and regulations governing the design, testing, manufacture, and deployment of HA Vs which might advance a business …

Taming Unicorns, Matthew Wansley

Articles

Until recently, most startups that grew to become valuable businesses chose to become public companies. In the last decade, the number of unicorns—private, venture-backed startups valued over one billion dollars—has increased more than tenfold. Some of these unicorns committed misconduct that they successfully concealed for years. The difficulty of trading private company securities facilitates the concealment of misconduct. The opportunity to profit from trading a company’s securities gives short sellers, analysts, and financial journalists incentives to uncover and reveal information about misconduct the company commits. Securities regulation and standard contract provisions restrict the trading of private company securities, which undermines …

The Amazing Carrie Menkel-Meadow And What Wins When Passions Collide, Lela Love

Articles

Carrie Menkel-Meadow (sometimes referred to as “Carrie” herein) is famous in the dispute resolution world as one of the field’s founders. Her prolific writing on dispute resolution—negotiation, mediation, arbitration, and the variants of these major processes—evidences an unrivaled passion for the subject. A renaissance thinker, her intellectual explorations also extend to other areas such as women’s rights and restorative justice for victims of egregious wrongs.

Her multiple passions sometimes create dynamic tensions. For example, what happens if mediation norms threaten a woman’s rights? Or if mediators divert the focus of a dispute resolution process to the future, neglecting a horrific …

Carrie Menkel-Meadow: Dispute Resolution In A Feminist Voice, Andrea Kupfer Schneider

Articles

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to …

Survey Of Recent Halakhic Literature: Of Tobacco, Snuff And Cannabis (Part Iii): Shemittah, J. David Bleich

Articles

No abstract provided.

A Second Look For Children Sentenced To Die In Prison, Kathryn E. Miller

Articles

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public …

Article 9 Foreclosures: When Is A Sale Not A Sale?, David G. Carlson

Articles

Article 9 of the Uniform Commercial Code empowers a secured creditor to sell collateral. This power is circumscribed. A secured party may not sell before default. A secured party cannot self-deal in a private sale. A pledgee of securities can sell to itself in a private sale if the securities are of a kind that is customarily sold on a recognized market, but the law is unclear what formalities the pledgee must meet to memorialize the sale. A secured party may not sell in a commercially reasonable manner to a buyer with notice of the commercial unreason. This article explores …

Transition From The Informal To The Formal Economy: The Need For A Multi-Faceted Approach, Kamala Sankaran

Articles

The recent international attention paid to the formalization of the informal economy finds reflection in ILO Recommendation No. 204 concerning the transition from the informal to the formal economy and the Sustainable Development Goals (Target 8.3). There is great diversity within the categories of the informal sector, informal employment, and informal economy in India. This paper examines the category of the ‘informal economy’ as understood in international instruments as well as in international statistics and maps these onto legal categories recognized within Indian law. The categories of ‘employed’, ‘engaged’, and ‘work arrangement’ used in Indian laws, and their interpretation by …

Fenceposts Without A Fence, Katherine E. Dr Lucido, Nicholas K. Tabor, Jeffery Y. Zhang

Articles

Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.

Product Liability Action: A Tooth To Strengthen Consumer Protection, Ashok R. Patil

Articles

As the world shifts to technological advancements, the advent of e-commerce marks its peak, particularly in India, where it has been earmarked as the fastest growing market with an annual growth rate of 51%. While these developments are an important part of globalization, a few challenges come along. Issues like unfair contracts, privacy, data protection, faulty goods, refund or return remained unaddressed as the earlier existing Consumer Protection Act, 1986 did not elucidate on the same. Given the above, the Law Commission of India had recommended that a separate law be enacted for better consumer protection. Based on the recommendations …

Book Review Of ‘Women, Peace And Security And International Law’, Christine Chinkin, Cambridge University Press, Akhila Basalalli

Articles

The social neutrality and gender disregard of mainstream international law have motivated the pioneering works of Christine Chinkin in addressing the gender disparity, for instance, the book ‘The Boundaries of International Law: A Feminist Analysis’ co-authored with Hilary Charlesworth. The book ‘Women, Peace and Security and International Law’ by Chinkin is an updated and detailed version of the lecture delivered in the Lauterpacht Centre for International Law in October 2016 as a part of the Lauterpacht lecture series. It was subsequently published by Cambridge Publishers in 2022.

Freedom From Speech, Mary Anne Franks

Articles

The importance of freedom of speech in a democratic society is usually taken as a given, but freedom from speech is no less important in safeguarding the values of truth, autonomy, and democracy. Freedom from speech includes both the right of the individual to not be forced to speak and the freedom to avoid the speech of others. This essay attempts to highlight the significance of freedom from speech in order to clarify the importance of the First Amendment right against compelled speech; provide an explanation for when the right of free speech yields to other rights; and offer a …