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Full-Text Articles in Law

Agency Genesis And The Energy Transition, Sharon B. Jacobs Jan 2021

Agency Genesis And The Energy Transition, Sharon B. Jacobs

Articles

Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.

This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating ...


Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer Jan 2021

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Articles

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court ...


Book Review, Aamir S. Abdullah Jan 2021

Book Review, Aamir S. Abdullah

Articles

No abstract provided.


Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado Peréz, Robin Kundis Craig, Lissa Griffin, Sarah Krakoff, Keith Hirokawa, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs Jan 2021

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado Peréz, Robin Kundis Craig, Lissa Griffin, Sarah Krakoff, Keith Hirokawa, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs

Articles

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.


American Common Market Redux, Richard Collins Jan 2021

American Common Market Redux, Richard Collins

Articles

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and ...


The Emerging Lessons Of Trump V. Hawaii, Shalini Ray Jan 2021

The Emerging Lessons Of Trump V. Hawaii, Shalini Ray

Articles

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump's animus toward immigrants. This Article assesses Hawaii's impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts' practice of privileging administrative law claims over constitutional ones. For example, courts ...


Is There A Delaware Effect For Controlled Firms?, Edward Fox Jan 2021

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

Articles

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 Jan 2021

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

Articles

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.


"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs Jan 2021

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

Articles

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 ...


Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran Jan 2021

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

Articles

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than ...


The Vulnerable Sovereign, Ronald A. Brand Jan 2021

The Vulnerable Sovereign, Ronald A. Brand

Articles

The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the ...


Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison Jan 2021

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

Articles

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.


A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand Jan 2021

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

Articles

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and ...


Political Justice And Tax Policy: The Social Welfare Organization Case, Philip Hackney Jan 2021

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

Articles

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 ...


Race, Dignity, And Commerce, Lu-In Wang Jan 2021

Race, Dignity, And Commerce, Lu-In Wang

Articles

This Essay was written at the invitation of the Journal of Law and Commerce to contribute a piece on racism and commerce—an invitation that was welcome and well timed. It arrived as renewed attention was focused on racialized policing following the killing of George Floyd and in the midst of the worsening pandemic that highlighted unrelenting racial, social, and economic inequities in our society.

The connections between racism and commerce are potentially numerous, but the relationship between discriminatory policing and commerce might not be apparent. This Essay links them through the concept of dignity. Legal scholar John Felipe Acevedo ...


Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens Jan 2021

Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens

Articles

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale—the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling ...


Dark Money Darker? Irs Shutters Collection Of Donor Data, Philip Hackney Jan 2021

Dark Money Darker? Irs Shutters Collection Of Donor Data, Philip Hackney

Articles

The IRS ended a long-time practice of requiring most nonprofits to disclose substantial donor names and addresses on the nonprofit annual tax return. It is largely seen as a battle over campaign finance rather than tax enforcement. Two of the nonprofits involved, social welfare organizations and business leagues, are referred to as “dark money” organizations because they allow individuals to influence elections while maintaining donor anonymity. Many in the campaign finance community are concerned that this change means wealthy donors can avoid campaign finance laws and have no reason to fear being discovered. In this Article, I focus on whether ...


Early Abortion Exceptionalism, Greer Donley Jan 2021

Early Abortion Exceptionalism, Greer Donley

Articles

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 ...


Lawyers For White People?, Jessie Allen Jan 2021

Lawyers For White People?, Jessie Allen

Articles

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 ...


Prisons, Nursing Homes, And Medicaid: A Covid-19 Case Study In Health Injustice, Mary Crossley Jan 2021

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

Articles

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 ...


The Folly Of The Embedded Full Citation: How The Bluebook And Alwd Manuals Encourage Weak Legal Writing, Ben Bratman Jan 2021

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

Articles

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 ...


The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand Jan 2021

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

Articles

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 ...


A Novel Response: How Law Libraries Adapted To The Pandemic, Aamir S. Abdullah Jan 2021

A Novel Response: How Law Libraries Adapted To The Pandemic, Aamir S. Abdullah

Articles

No abstract provided.


Imagining The Progressive Prosecutor, Benjamin Levin Jan 2021

Imagining The Progressive Prosecutor, Benjamin Levin

Articles

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 ...


Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie Jan 2021

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

Articles

No abstract provided.


Policing And "Bluelining", Aya Gruber Jan 2021

Policing And "Bluelining", Aya Gruber

Articles

In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals ...


Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran Jan 2021

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

Articles

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard ...


Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux Jan 2021

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Articles

No abstract provided.


Introduction To The Symposium: The Stakes For Critical Legal Theory, Elizabeth S. Anker, Justin Desautels-Stein Jan 2021

Introduction To The Symposium: The Stakes For Critical Legal Theory, Elizabeth S. Anker, Justin Desautels-Stein

Articles

No abstract provided.


Put More Women In Charge And Other Leadership Lessons From Covid-19, Peter H. Huang Jan 2021

Put More Women In Charge And Other Leadership Lessons From Covid-19, Peter H. Huang

Articles

COVID-19 teaches us lessons about leadership, the most important of which is to put more women in charge. This Article provides an interdisciplinary analysis of these lessons, which come at the very high price of many forever disrupted and lost human lives. COVID-19 is a global tragedy. COVID-19 can also be a cruel, relentless and unforgiving teacher of valuable lessons about leadership. During COVID-19, leaders had to quickly mobilize many resources and convince many people to change their established behaviors and familiar routines. Leaders had to rely on effective and persuasive communication to achieve buy-in and voluntary compliance by a ...