Law Commons^™

Process As Suffering: How U.S. Immigration Court Process And Culture Prevent Substantive Justice, Christopher Levesque, Kimberly Horner, Linus Chan

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In this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. …

International Law Publishing Trends: What Journals Print, Bianca Anderson, Kathleen Claussen

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No abstract provided.

A Mathematical Model Of Juvenile Delinquency In The New York State, Oluwasegun Micheal Ibrahim

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This report presents a mathematical model of juvenile delinquency in the New York State. In particular, we develop a juvenile delinquency system of non-linear differential equations using the mathematical epidemiology framework. In constructing this model, we assume that juvenile delinquency can be studied as a socially infectious disease. The stability of the juvenile delinquency-free equilibrium of the model is examined using the standard non-linear dynamical systems theory technique. We carried out a data fitting based on real-life data from the New York State Criminal Justice Services. The research result reveals that the formulated model conforms with the available data and …

Community Property And Conflict Of Laws: A Cacophony Of Cases, Karen Boxx

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Justice Cardozo is reported to have said that "the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw." Conflict of laws can be vexing, but the resolution of a controversy involving multiple states' marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states …

Consortium For Study And Analysis Of International Law Scholarship: Foreword, Kathleen Claussen

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No abstract provided.

Fair Value As Process: A Retrospective Reconsideration Of Delaware Appraisal, William Wilson Bratton

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This Article reconsiders the jurisprudence of fair value under Delaware's appraisal remedy, placing recent cases in historical perspective and offering a novel account. Its central observation is that appraisal has developed into a process jurisprudence rather than jurisprudence devoted to the articulation of an entitlement. As such it defies expectations and excites the wrath of academic commentators looking for a more conventional, rights-based evolution. There is a nominal entitlement: the cases at all times announce that shareholder dissenters may pursue going concern value (as opposed to third party sale value) as the measure of fair value. But the Delaware courts …

Witness Hide-And-Seek: Why Federal Prosecutors Should Record Pretrial Interviews, Christina Frohock, Jeffrey E. Marcus

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This Article pays long-overdue attention to a federal appellate court's warning against "playing hide-and-seek" with witnesses. Specifically, prosecutors should record interviews. While courtroom cameras dominate the topic of judicial transparency, cameras can play a critical role in a sleepier corner of criminal proceedings: pretrial witness interviews. The Article first tracks the history of open judicial proceedings as a tradition of our Anglo- American jurisprudence. Next, the Article identifies the normative thread running through that history. Fairness may suffer when cameras transform public proceedings into publicized proceedings. Finally, the Article argues that this same issue of fairness applies to pretrial witness …

The Next 100 Years Of International Intellectual Property: Integrating Human Rights And Corporate Social Responsibility, J. Janewa Osei-Tutu

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No abstract provided.

Trade Policing, Kathleen Claussen

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At the core of U.S. economic governance, there is a novel and under-noticed phenomenon that challenges longstanding frameworks of international law and corporate compliance. This practice, which this Article terms the new "trade policing," has extraordinary reach. Recent regulatory makeovers and pathbreaking statutes empower our trade agencies to target, for the first time, companies, rather than foreign governments, as used to be their purview. Trade police now pursue companies wherever they may be in the world, not just for violating U.S. law but also for violating foreign law in areas as diverse as labor rights and environmental protections. Such a …

Cinnamon P. Carlarne, Albany Law School's Nineteenth President And Dean, Garry W. Jenkins, Katrina Fischer Kuh, Jonathan Rosenbloom, Marc Roark, Jessica Owley, Robin Kundis Craig, Keith H. Hirokawa

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No abstract provided.

Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore

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In the history of new labor localism, city-level living wage ordinances emerging in the 1990s with Los Angeles leading the way have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as …

Chatgpt, Esq.: Recasting Unauthorized Practice Of Law In The Era Of Generative Ai, Joseph J. Avery, Patricia S. Abril, Alissa Del Riego

Articles

In March of 2023, OpenAI released GPT-4, an autoregressive language model that uses deep learning to produce text. GPT-4 has unprecedented ability to practice law: drafting briefs and memos, plotting litigation strategy, and providing general legal advice. However, scholars and practitioners have yet to unpack the implications of large language models, such as GPT-4, for long-standing bar association rules on the unauthorized practice of law ("UPL"). The intersection of large language models with UPL raises manifold issues, including those pertaining to important and developing jurisprudence on free speech, antitrust, occupational licensing, and the inherent-powers doctrine. How the intersection is navigated, …

Is "Public Company" Still A Viable Regulatory Category?, George S. Georgiev

Articles

This Article suggests that the ubiquitous "public company" regulatory category, as currently constructed, has outlived its effectiveness in fulfilling core goals of the modern administrative state. An ever-expanding array of federal economic regulation hinges on public company status, but "public company" differs from most other regulatory categories in that it requires an affirmative opt-in by the subject entity. In practice, firms today become subject to public company regulation only if they need access to the public capital markets, which is much less of a business imperative than it once was due to the proliferation of private financing options. Paradoxically, then, …

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

Articles

Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested far safety. Many have been shown to cause serious health harms, ranging.from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures-the Toxic Substances Control Act ("TSCA")-was long considered a dead letter after the Environmental Protection …

Reforming Shareholder Claims In Isds, Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra

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ISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post …

Restoring Indian Reservation Status: An Empirical Analysis, Michael K. Velchik, Jeffery Zhang

Articles

In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.

Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

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The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Back To Basics: The Benefits Of Paradigmatic International Organizations, Kristina Daugirdas, Katerina Linos

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In the early 2000s, small “coalitions of the willing,” flexible networks, and nimble private-public partnerships were promoted as alternatives to bureaucratic, consensus-seeking, and slow-moving international organizations. The Global Fund to Fight AIDS, Tuberculosis and Malaria was established as an efficient alternative to the lumbering World Health Organization. The Basel Committee, the Financial Stability Forum, and the Financial Action Task Force were lauded as global market regulators. The Pompidou Group, the Dublin Group, and Interpol were touted as effective police networks in the battle against transnational crime.

We systematically reviewed the evolution of these celebrated networks in the ensuing decades by …

Feedback Loops: E-D-I-T, Patrick Barry

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The Keep/Cut Framework we learned about back in the December 2022 Feedback Loops column is, admittedly, a bit of a blunt feedback instrument. When the only feedback you can give is “Keep” or “Cut,” there’s not a ton of room for nuance or gradation. Your comments are restricted to either endorsing what already exists or pushing for something to be removed. hat’s a pretty limited menu.

So in both this column and in the June 2023 column, we’re going to learn about a feedback framework that creates opportunities for a greater range of opinions and recommendations: “E-D-I-T.”

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Individual Mobility And The Corporate Tax, Reuven S. Avi-Yonah

Articles

The COVID-19 pandemic greatly increased the ability of individuals to move to their preferred location on the globe and continue to work remotely. This phenomenon has significant implications for individual income taxation because if they are U.S. citizens, these individuals are subject to two global residence-based tax regimes.

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

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Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

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Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

Pillar 2 And The Credits., Reuven S. Avi-Yonah

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The international tax provisions of the Build Back Better Act (BBB) passed by the House of Representatives represent a reasonable compromise. They are consistent with the OECD’s Pillar Two statement, and they represent a significant move toward the implementation of the single tax principle (STP). In what follows, we will discuss the proposed changes and how they fit in with the new international tax regime (ITR). We will also address the possible interactions with the ITR if BBB is not enacted.

All Stick And No Carrot? Reforming Public Offerings, Stephen J. Choi, Adam C. Pritchard

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The SEC heavily regulates the traditional initial public offering (IPO). Those regulatory burdens fuel interest in alternative paths for private companies to go public, “regulatory arbitrage.” The SEC’s response to the emergence of alternatives, most recently SPACs and direct listings, has been to re-assert the regulatory protections in a traditional IPO, including heightened liability under Section 11 of the Securities Act. The SEC’s treatment of the traditional IPO regulatory process as a one-size fits-all regime ignores the weaknesses of this process, in particular the informational inefficiency of the book-building process. In this essay we argue that the agency’s focus in …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

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In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

The Gross Injustices Of Capital Punishment: A Torturous Practice And Justice Thurgood Marshall’S Astute Appraisal Of The Death Penalty’S Cruelty, Discriminatory Use, And Unconstitutionality, John D. Bessler

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Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. …

In Search Of The First-Round Knockout A Rule 12(B) Primer, Kate Rogers, Leonard Niehoff

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Boxing enthusiasts define success not just by wins and losses but also by knockouts. Many of the greatest fighters in the history of boxing—Rocky Marciano, Mike Tyson, Jack Dempsey, and Sugar Ray Robinson—were known for their knockout punching power. Within the category of knockouts, the gold standard is the first-round knockout, the moment when stunned fans watch a fighter take the opponent out of the contest before either of them has broken a sweat.

Informationalism Beyond Managerialism, Salome Viljoen

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It is now commonplace to observe that digital platforms are both affecting and reshaping markets. The focus of this Article is not the anticompetitive effects of digital platforms upon the markets they enter. It instead focuses on digital platforms themselves as market mechanisms. Information—especially datafied information about people and their behavior—and information technologies have transformed how many markets function in the digital economy. Markets have become market machines: highly engineered and computationally intensive market-like mechanisms that make up a key layer of technological infrastructure within digital platforms.

Religious Liberty For All? A Religious Right To Abortion, Caroline Mala Corbin

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One of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one's faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with …