Law Commons^™

The Promise & Perils Of Open Finance, Dan Awrey, Joshua Macey

Articles

We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry, offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open …

Strategic Subdelegation, Brian D. Feinstein, Jennifer Nou

Articles

Appointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when …

Personal Jurisdiction’S Moment Of Opportunity: A Reform Blueprint For Originalists And Nonoriginalists, Allan Erbsen

Articles

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on jargon rather than a coherent account of how to allocate jurisdictional power …

Standing, Nominal Damages, And Nominal Damages "Workarounds" In Intellectual Property Law After Transunion, Thomas F. Cotter

Articles

In June 2021, the United States Supreme Court held, in TransUnion LLC v. Ramirez, that plaintiffs lack standing to assert claims for statutory damages under the Fair Credit Reporting Act unless they can demonstrate “concrete harm” arising from those violations. Although TransUnion was not a case involving intellectual property (“IP”) rights, if the rationale of the decision is that Congress cannot authorize federal courts to entertain claims for statutory damages unless the plaintiff shows that it has suffered actual harm, some common monetary awards for the infringement of IP rights — specifically, statutory damages, reasonable royalties, and (in design patent …

Supporting Families In A Post-Dobbs World: Politics And The Winner-Take-All Economy, June Carbone

Articles

The pathway to stable and secure middle-class status involves two elements: the ability to postpone family formation to facilitate human capital investment and the ability to marshal the emotional and material resources needed to address children needs. Yet, the ability to meet the middle-class threshold for family investment is under assault as the class-based COVID-19 pandemic vulnerabilities and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization illustrate. While the American Rescue Plan demonstrates the federal government's considerable ability to address children's needs, Dobbs represents the judicial assault on federal power and the ongoing devolution in responsibility for …

The Multifaceted Method Of Comparative Law And Economics, Francesco Parisi

Articles

As initially conceived of in the Eighties, Comparative Law and Economics provided legal scholars a neutral language for the exploration of similarities and differences across legal systems. Its value added is the theoretical rigour of its models and the possibility to engage in a scientific dialogue not hampered by jurisdiction-specific features. At a later stage, comparative approaches became fully embedded in economic research and its empirical methods. Possible synergies with comparative legal research abound, but the organization of academic structures has so far prevented to fully exploit them.

Moderating The Fediverse: Content Moderation On Distributed Social Media, Alan Rozenshtein

Articles

No abstract provided.

Doing Injustice: Exchanging One “Arbitrary, Cruel, And Reckless” Sentencing System For Another, Michael Tonry

Articles

Marvin Frankel’s characterization of American sentencing in Criminal Sentences: Law Without Order remarkably successfully distilled ideas that were in the air and emerging. His main proposals—a sentencing commission, sentencing rules, requirements that judges explain their decisions, and meaningful appellate sentence review—would in a better America go a long way toward establishing the kind of rational, humane, and just process he imagined. Despite some early, partial successes, however, Frankel’s proposals remain largely untested. In retrospect, he underestimated, misunderstood, or chose to ignore formidable political impediments to serious sentencing reform in late twentieth century America. He also largely ignored two intractable problems, …

The Blue Family Constitution, June Carbone

Articles

No abstract provided.

The Partial Success Of Judge Frankel’S Sentencing Commission, Fifty Years On, Richard Frase

Articles

Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story …

State Responsibility For Human Rights Violations Perpetrated In The Name Of International Counter-Terrorism Financing Obligations, Fionnuala Ní Aoláin

Articles

This Essay responds to the increasing adoption by States across continents of repressive, over-reaching laws, regulations, and policies aimed at countering the financing of terrorism. It documents the immense international pressure to adopt counter-terrorism financing measures, coupled with the seeming marginalization of concurrent international human rights law obligations. The Essay first sets out the applicable legal framework and rapid normative developments in international counter-terrorism financing law. Second, the Essay provides a snapshot of existing allegations of human rights violations committed in the name of international counter-terrorism financing obligations, including judicial harassment and undue surveillance of human rights defenders and civil …

Textualism And The Administrative Procedure Act, Kristin Hickman

Articles

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …

Enforcement-Proofing Work Law, Charlotte Garden

Articles

No abstract provided.

Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan

Articles

Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, …

Appointed Or Elected: How Justices On Elected State Supreme Courts Are Actually Selected, Herbert M. Kritzer

Articles

During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection.

How Privilege Undermines Cybersecurity, Daniel Schwarcz

Articles

In recent years, cyberattacks have cost firms countless billions of dollars, undermined consumer privacy, distorted world geopolitics, and even resulted in death and bodily harm. Rapidly accelerating cyberattacks have not, however, been bad news for many lawyers. On the contrary, lawyers that specialize in coordinating all elements of victims’ incident-response efforts are increasingly in demand. Lawyers’ dominant role in cyber-incident response is driven in part by their purported capacity to ensure that information produced during the breach response process remains confidential, particularly in any subsequent lawsuit. By interposing themselves between their clients and any third party consultants involved in incident …

Bureaucratic Autonomy And The Policymaking Capacity Of United States Agencies, 1998–2021, Nicholas Bednar

Articles

Despite a renewed interest in the health of the US administrative state, the absence of meaningful time-series measures of bureaucratic capacity hinders the testing of core theories of bureaucratic and executive politics. Using over 190 million personnel records, I estimate 5590 yearly policymaking-capacity scores for 261 unique agencies from 1998 to 2021. These measures provide an invaluable tool as either an independent or dependent variable in studies of administrative policymaking. To illustrate the value of these measures, I test longstanding theories about the relationship between bureaucratic autonomy and capacity. In contrast with emerging survey research, this study demonstrates that agencies …

Labor Relations At The Woke Corporation, Matthew Bodie

Articles

This symposium contribution will consider the role of labor relations within the so-called “woke” corporation. Part I will explore the turn in corporate behavior and corporate law theory towards an attention to stakeholders and a larger corporate purpose. Part II examines how this shift in corporate sentiment has not changed the traditional hostility towards the choice of a company’s own workers to unionize. Part III considers how to address this disjunction, both through pressure from the workers themselves and through changes in corporate law, corporate theory, and labor and employment law.

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

Articles

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

Articles

No abstract provided.

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

Articles

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.

The Virtuous Executive, Alan Rozenshtein

Articles

As currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics.

This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. …

Liability Or No Liability? Promoting Safety By Shifting Accident Losses Onto Third Parties, Francesco Parisi

Articles

In a recent article, Guerra et al. considered the problem of liability for accidents caused by the activity of robots, proposing a novel liability regime, which they referred to as ‘manufacturer’s residual liability.’ Under this regime, injurers (robot operators) and victims are liable for accidents due to their negligence (hence, they are incentivised to act diligently), and third-party robot manufacturers bear all remaining accident losses, even when the accident is not caused by a defect or malfunction of the robot. In this article, I explore the possibility of extending this framework of liability to other tort scenarios. I refer to …

The Public Administration Of Justice, Nicholas Bednar

Articles

Adjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which noncitizens get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause's demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff When agencies lack these resources, their adjudicators rely on various coping …

Burdens Of Proof In Establishing Negligence: A Comparative Law And Economics Analysis, Francesco Parisi, Giampaolo Frezza

Articles

Inherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a …

Deepfake 2024: Will Citizens United And Artificial Intelligence Together Destroy Representative Democracy?, Richard Painter

Articles

Deepfakes – computer generated counterfeit videos and audios of people saying and doing things they never said or did – are proliferating on social media and increasingly will be used to target candidates in elections. Citizens United v. FEC, and cases decided in its aftermath, have opened the floodgates of dark money funded electioneering communications, and some of this money will be spent on deepfakes made and disseminated by persons unknown. Some deepfakes may originate outside the United States, as they become a new instrument for foreign interference in U.S. elections.

The Federal Election Commission (FEC) has been asked by …

Independence Reconceived, Claire A. Hill, Yaron Nili

Articles

What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing …

The Court’S Morality Play: The Punishment Lens, Sex, And Abortion, June Carbone, Naomi Cahn

Articles

This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.

This Article is unique in discussing …

An Empirical Constitutional Crisis: When Magistrate Judges Exercise De Facto Article Iii Power, Edward Adams

Articles

Magistrate judges within the United States district court system have historically been viewed as a means to alleviate the large caseloads faced by district court judges. Magistrate judges issue Reports and Recommendations (R&Rs), wherein they detail the underlying facts, analyze relevant legal issues, and outline a proposed order for district court judges to follow. While district court judges may reject or modify R&Rs submitted to them, district court judges overwhelmingly adopt R&Rs, even after a purportedly de novo determination. In doing so, this Article posits that constitutionally-appointed district court judges are abrogating their Article III constitutionally required role to magistrate …

The Value Of Understandable Consumer Insurance Contracts, Daniel Schwarcz, Kyle Logue, Brenda J. Cude

Articles

Insurance consumers, the intermediaries who serve them, and the regulators who protect them all would benefit from understandable consumer insurance contracts. This article outlines the benefits of understandable insurance contracts, identifies the regulatory tools that are or can be used to ensure such comprehensibility, and reviews the existing literature about how well consumers comprehend their insurance policies within the context of personal lines insurance in the U.S. The article concludes by proposing an empirical research strategy to study consumers’ understanding of the terms of homeowners insurance policies and, even when they have not read their policies, their expectations about coverage.