Law Commons^™

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

Articles

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 …

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 …

Antimatters: The Curious Case Of Confederate Monuments, Jeremiah Chin

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Confederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to …

Just Kidding? The Problem Of Unenforceable Waivers Of Liability, Anthony J. Sebok

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No abstract provided.

Mitigating Catastrophe Risk For Landowners, Stewart E. Sterk

Articles

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 …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Articles

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

Articles

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

Articles

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 …

The Utpr And The Treaties, Reuven Avi-Yonah

Articles

On December 15, 2022, the Council of the EU unanimously adopted a directive implementing pillar 2 of the OECD/G-20/inclusive framework base erosion and profit-shifting 2.0 project. Given that the United Kingdom is also going ahead, and several other countries (for example Australia, Canada, New Zealand) are likely to go ahead, this step renders it likely that pillar 2 will come into effect outside the United States. It therefore becomes important to address the interaction between the UTPR (now known as the undertaxed profits rule) and tax treaties, even though both EU directives and national legislation in the United Kingdom can …

Deregulation: Too Big For One Branch, But Maybe Not For Two, Stephen M. Johnson

Articles

When President Trump took office in 2017, he pursued a deregulatory agenda that exceeded even that of President Reagan. Environmental rules and policies were a major target of the Administration. The President deployed a mix of traditional tools, such as executive orders, guidance documents and policies, and rulemaking to suspend or reverse longstanding regulations and policies of the Environmental Protection Agency (EPA), the Department of the Interior, and other environmental agencies. The Administration also utilized the Congressional Review Act as it had not been used before and aggressively sought abeyances in litigation challenging disfavored rules and policies to advance its …

International Digital Nomads: Immigration Law Options In The United States And Abroad, Scott Titshaw

Articles

Remote work has become common, allowing many people to choose to work anywhere with an adequate internet connection. Some are adopting a “digital nomad” lifestyle, moving with the seasons or years from place to place, including foreign locations. Yet, such international movement raises immigration and other legal issues. Many countries have adopted specific digital nomad visas and other immigration policies to encourage and regulate this trend. The United States is not one of them. Arguing that the United States should consciously plan for digital nomads, this article compares the current U.S. approach with the innovations of other countries, identifying the …

Stories That Kill: Masculinity And Capital Prosecutors' Closing Arguments, Pamela A. Wilkins

Articles

The American death penalty is a punishment by, for, and about men: Both historically and today, most capital prosecutors are men, most capital defendants are men, and killing itself is strongly coded male. Yet despite—or perhaps because of—the overwhelming maleness of the institution of capital punishment, the subject of masculinity is largely absent from legal discourse about the death penalty. This Article addresses that gap in the legal discourse by applying the insights of masculinities theory, an offshoot of feminist theory, to capital prosecutors’ closing arguments. This Article hypothesizes that capital prosecutors’ masculinity is strongly influenced both by white Southern …

The World Of International & Comparative Law Journals, Kathleen Claussen

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No abstract provided.

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

Articles

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 …

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

Articles

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 …

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

Articles

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

Articles

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 …

Rulemaking 3.0: Incorporating Ai And Chatgpt Into Notice And Comment Rulemaking, Stephen M. Johnson

Articles

Technological innovations since the turn of the century have created opportunities to increase public participation in notice and comment rulemaking, increase the efficiency of the process, and increase the quality of the rules adopted by agencies. For some rules, online rulemaking and social media have facilitated increased public participation, but have not necessarily facilitated improvements in the quality of public comments. In addition, in some cases, the transformation of the process has created new challenges for government agencies by making it easier for supporters or opponents of rules to flood agencies with duplicative and potentially false comments to which the …

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

Articles

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

Articles

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 …

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

Articles

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

Articles

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 …

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

Articles

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

Articles

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

Articles

“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 …

The (Mis)Uses Of The S&P 500, Adriana Z. Robertson

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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

Articles

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 …

Severability First Principles, William Baude

Articles

The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what …