Law Commons^™

Citation, Slavery, And The Law As Choice: Thoughts On Bluebook Rule 10.7.1(D), David J.S. Ziff

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Today, more than 150 years after the end of the Civil War, lawyers and judges continue to rely on antebellum decisions that tacitly or expressly approve of slavery. This reliance often occurs without any acknowledgement of the precedent’s immoral and legally dubious provenance. Modern use of these so-called “slave cases” was the subject of Professor Justin Simard’s 2020 article, Citing Slavery. In response to Professor Simard’s article, the latest edition of The Bluebook includes Rule 10.7.1(d), which requires authors to indicate parenthetically when a decision involves an enslaved person as a party or the property at issue. Unfortunately, Rule 10.7.1(d) …

Modalities Of Social Change Lawyering, Christine N. Cimini, Doug Smith

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The last decade has seen the rise of new kinds of grassroots social movements. Movements including Occupy Wall Street, Black Lives Matter, Sunrise, and #MeToo pushed back against long-standing political, economic, and social crises, including income inequality, racial inequality, police violence, climate change, and the widespread culture of sexual abuse and harassment. As these social change efforts evolve, a growing body of scholarship has begun to theorize the role of lawyers within these new social movements and to identify lawyering characteristics that contribute to sustaining social movements over time. This Article surveys this body of literature and proposes a typology …

Fables Of Scarcity In Ip, Zahr K. Said

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In this chapter, I use methods drawn from literary analysis to bear on artificial scarcity and explore how literary and legal storytelling engages in scarcity mongering. I find three particular narrative strategies calculated to compel a conclusion in favor of propertization: the spectacle of need, the diversionary tactic, and the rallying cry. First, I unpack the spectacle of need and its diversionary aspects through several literary accounts of scarcity and starvation. I juxtapose Franz Kafka's “A Hunger Artist,” a story explicitly centered on a wasting body, with J.M. Coetzee's The Life and Times of Michael K. Second, to explore how …

From The Editors In Chief, Kathleen Claussen, Sergio Puig, Michael Waibel

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No abstract provided.

Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert

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This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

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Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

No Sense Of Decency, Kathryn E. Miller

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For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Unbelievable: How Narrative Can Help Vulnerable Narrators Overcome Perceived Unreliability In The Legal System, Cathren Page

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This article examines how advocates can champion vulnerable narrators’ truths. First, advocates must prime the audience by educating the audience about the ways the vulnerability manifests; this process helps to allay credibility questions. Second, advocates must reframe seemingly untrustworthy behavior by showing how the behavior is consistent with someone in the vulnerable narrator’s situation. Third, advocates must create what fiction writers call verisimilitude—a sense of reality—by including concrete details that logically fit together in the legal narrative. Finally, advocates must label the tactics commonly used to discredit vulnerable narrators so that the audience can see those tactics for what they …

Mitigating Catastrophe Risk For Landowners, Stewart E. Sterk

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Local, national, and global catastrophes entail significant risk for landowners. The government-sponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in overinvestment in risk-prone properties. Government intervention, however, has largely been a response to the historical failure of the private insurance industry to provide adequate protection against correlated risks, a failure with the potential to generate underinvestment in land and devastate existing owners.

When data is available about the incidence and severity of potential disasters, improvements in technology have made it more feasible for insurers to calibrate premiums and discounts with greater accuracy, and sophisticated …

Supporting Compliance Of Occupational Safety And Health Requirements - European Labour Inspection Systems Of Sanctions And Standardised Measures, Victor Hrymak

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European legislation for occupational safety and health (OSH) is based on the prevention of accidents and ill health. Apart from European directives, all Member States have national laws and strategies and expect enterprises to implement this preventative ethos, and thereby ensure adequate performance in OSH. Labour Inspectorates monitor and if necessary enforce these laws by deploying individual Labour Inspectors to chosen enterprises. If workplace safety and health conditions are found to be substandard, Labour Inspectors are expected to improve the situation using persuasion and, if necessary, their authority to compel enterprises through specific sanction powers. Bruhn (2009) describes this interaction …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

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Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

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Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

Too Good To Be True: Private Placement Life Insurance Policies, Luís C. Calderón Gómez

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In this article, Calderón Gómez examines a tax avoidance scheme involving private placement life insurance policies — large policies that potentially allow wealthy taxpayers to move their traditionally tax-inefficient investments in private equity and hedge funds into a life insurance policy and accumulate, borrow against, and pass on those investment gains effectively tax free — and sketches some possible alternatives to stop the abuse of these policies.

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

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In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

Mitigating Citation Errors In The Interlibrary Loan System, Scott Dewey, David Zopfi-Jordan

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Journal articles from most academic disciplines have long shown high rates of citation errors. American law reviews, with their careful cite-checking, are a rare exception to the overall rule. Incorrect citations are especially costly and problematic for interlibrary loan librarians. This article offers practical suggestions to address the problem.

Antidiscrimination Efforts And The Repressive Weight Of Culture, Matthew Bodie

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No abstract provided.

Introduction To The Symposium On Labor Market Power, Eric A. Posner

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No abstract provided.

Against Political Theory In Constitutional Interpretation, Christopher S. Havasy, Joshua C. Macey, Brian Richardson

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Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write …

Horizontal Collusion And Parallel Wage Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner

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Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related …

A Symposium To Mark The Publication, By New York University Press, Of Ian O’Donnell’S Prison Life: Pain, Resistance, And Purpose, Rosemary Gido, Derek S. Jeffreys, Cormac Behan, Kimmett Edgar, Bethany E. Schmidt, Gorazd Mesko, Mary K. Stohr, Ashley T. Rubin

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Recognizing the major scholarly contributions to criminology by the noted Irish criminologist, Ian O’Donnell, The Prison Journal invited seven contemporary corrections and punishment scholars to offer insights into O’Donnell’s new book, Prison Life: Pain, Resistance, and Purpose. Offering contextually rich descriptions of prisoner life, the text features four case study prisons—H Blocks, Northern Ireland; Eastham Unit, Texas; Isir Bet, Ethiopia; and ADX Florence, Colorado, in pivotal time periods and through an individual's custodial career in each institution. The symposium discussants focus on O’Donnell's conceptual framework—the degree of prison integration, system and staff regulation, and legitimacy—and how these reflect the key …

What’S Law Got To Do With It? How The Degree Of Legalization Affects The Durability Of Post-Conflict Autonomy Agreements, Felix Schulte, Gene Carolan

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Research has identified several factors that impact the sustainability of post-conflict territorial autonomy arrangements (TAA), including previous levels of violence, economic development in a given territory, or the strategic importance thereof. We argue that a hitherto neglected variable lies in the legal form of the autonomy agreement – that is, the degree to which it has been ‘legalized’ by the language and processes prescribed in the agreement. Based on a qualitative evaluation, we assess the legalization degree of 236 TAA signed between 1990 and 2019. Survival analyses and Cox regression models show that a higher degree of legalization has a …

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

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This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants.

Book Review: The “Common-Good” Manifesto, William Baude, Stephen E. Sachs

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In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others …

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis A. Bradley

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The text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a …

Spacs, Pipes, And Common Investors, Frank Fagan, Saul Levmore

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Special Purpose Acquisition Companies, or SPACs, have come to play a large role in bringing together small and large investors in the acquisition and expansion of private companies. A pessimistic version of this relatively recent alternative to conventional initial public offerings (IPOs), and other methods of investing in companies ready to expand, is that clever sharks take advantage of overly optimistic and ill-informed small investors. This Article offers a very different view. It shows that common investors need someone to locate good investment opportunities, and then they often benefit if another well-informed party can credibly vouch for the entity that …

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua A. Macey

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Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal- ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …

Residents Against Housing: A Response To Professor Infranca’S ‘Differentiating Exclusionary Tendencies’, Lee Anne Fennell

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Incumbent residents routinely oppose residential development.¹ Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.² Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.³ Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.⁴

Resident opposition …

The Long Hand Of Anti-Corruption: Israeli Judicial Reform In Comparative Perspective, Tom Ginsburg

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There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition’s efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.

Fractured Majorities And Their Reasons, Saul Levmore

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The wisdom of crowds correctly exalts majority decision-making on appellate courts as well as on many other settings, including hospitals and committees with multiple doctors or board members. But the same confidence in majorities should be applied to the reasons that are attached to a vote, or opinion, and then to a majority’s rejection of a member’s reasoning. This Article introduces the problems confronted when examining the reasons for opinions, and then the reasons beneath those reasons. It shows that majority decision-making is not as reliable as it first seems and, indeed, that a single decision-maker may at times be …

Coordinated Rulemaking And Cooperative Federalism’S Administrative Law, Bridget A. Fahey

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“Cooperative federalism” is not just a model of federalism; it is a model of administration. From health care to air quality to emergency management, transportation, immigration, national security, and more, cooperative federalism is the regulatory model of choice. But scholars have yet to conceptualize a cooperative administrative law for cooperative federalism. As this Article shows, however, federal and state bureaucracies have devised intricate strategies for coordinating their implementation of the programs they jointly administer.

The Article begins to elaborate cooperative federalism’s unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the workhorse of administrative law. I show …