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Full-Text Articles in Law

Rbg: Nonprofit Entrepreneur, David M. Schizer Jan 2021

Rbg: Nonprofit Entrepreneur, David M. Schizer

Faculty Scholarship

It is exceedingly rare for one person to change the world almost single-handedly, but Justice Ruth Bader Ginsburg was one of those people. Even before her distinguished judicial career, RBG was a trailblazing advocate for women’s rights during the 1970s. She persuaded the Supreme Court that gender discrimination violates the Equal Protection Clause of the U.S. Constitution, winning five of the six cases she argued there. To lead this historic effort, RBG served as general counsel of the ACLU and as co-founder and the first director of its Women’s Rights Project from 1972 until she became a ...


Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh Jan 2021

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the ...


A Human Rights Agenda For The Biden Administration, Sarah H. Cleveland Jan 2021

A Human Rights Agenda For The Biden Administration, Sarah H. Cleveland

Faculty Scholarship

The Biden administration has much to do to restore the United States’ credibility as a human rights leader and to strengthen the human rights system in an era of rising right-wing nationalism, authoritarianism, and competition for global power. In doing so, it needs to lead by example by putting its own house in order, and act with both courage and humility in the face of deep global skepticism and distrust. Specifically, the administration should pursue five stages of engagement on human rights: reverse and revoke measures taken by the Trump administration, reaffirm the United States’ traditional commitments to human rights ...


Trade Integration In Turbulent Times, Petros C. Mavroidis Jan 2021

Trade Integration In Turbulent Times, Petros C. Mavroidis

Faculty Scholarship

The WTO has been going through an existential crisis, from which it is like that it will not exit unscathed. If it is to remain an organization of universal membership, it will have to content itself to shallow integration. Its continuing policy relevance, will largely depend on the choices it will make about the nature of its own integration process. The good news is that no one can simply walk away from globalization. The downside (for the WTO) is that globalization is being increasingly administered through bilateral contracts.


Populist Prosecutorial Nullification, Kerrel Murray Jan 2021

Populist Prosecutorial Nullification, Kerrel Murray

Faculty Scholarship

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach ...


Strengthened Bonds: Abolishing The Child Welfare System And Re-Envisioning Child Well-Being, Nancy D. Polikoff, Jane M. Spinak Jan 2021

Strengthened Bonds: Abolishing The Child Welfare System And Re-Envisioning Child Well-Being, Nancy D. Polikoff, Jane M. Spinak

Faculty Scholarship

The 2001 book, Shattered Bonds: The Color of Child Welfare, by Dorothy Roberts, called out the racism of the child welfare system and the harms that system perpetrates on families and communities. Twenty years later, despite numerous reform efforts, the racism and profound harms endure. It is time for transformative change. In this foreword to the symposium Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, honoring the 20th anniversary of Shattered Bonds, we highlight Professor Roberts’ articulation of her development as a family policing abolitionist and summarize the articles and comments contributed from scholars in numerous disciplines ...


The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg Jan 2021

The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg

Faculty Scholarship

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push ...


The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski Jan 2021

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all ...


Propertied Rites, Kellen R. Funk Jan 2021

Propertied Rites, Kellen R. Funk

Faculty Scholarship

This Essay reviews Jack Rakove’s Beyond Belief, Beyond Conscience and Winnifred Fallers Sullivan’s Church State Corporation with an eye towards the complex management of religious property in U.S. constitutional doctrine. Part I summarizes Rakove’s book and highlights its value in the context of recent scholarship on early American legislative theory. Part II critiques Rakove’s turn from description towards advocacy of James Madison’s liberal protestant political theology. Part III summarizes Sullivan’s book as a particularly potent rebuttal to Rakove’s. Part IV takes up Sullivan’s method to consider the most recent crisis of ...


A Major Simplification Of The Oecd’S Pillar 1 Proposal, Michael J. Graetz Jan 2021

A Major Simplification Of The Oecd’S Pillar 1 Proposal, Michael J. Graetz

Faculty Scholarship

In this report, Graetz suggests major modifications to the OECD’s pillar 1 blueprint proposal to create a new taxing right for multinational digital income and some product sales that would greatly simplify the proposal. The modifications rely on readily available existing financial information and would achieve certainty in the application of pillar 1, while adhering to its fundamental structure and policies.


The Legal Framework For Offshore Carbon Capture And Storage In Canada, Romany M. Webb, Michael B. Gerrard Jan 2021

The Legal Framework For Offshore Carbon Capture And Storage In Canada, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Averting catastrophic climate change requires immediate action to prevent additional carbon dioxide and other greenhouse gases being released into the atmosphere. However, even that may not be sufficient, with many scientists now warning that it will likely also be necessary to reduce the existing atmospheric carbon dioxide load. That could be achieved using negative emissions technologies that remove carbon dioxide from the atmosphere and store or utilize it in some way. One promising technology is direct air capture (“DAC”) which uses liquid chemical solutions or solid sorbent filters to capture carbon dioxide from the air and concentrate it into a ...


America's Zero Carbon Action Plan: Federal Legislative And Administrative Framework, John C. Dernbach, Michael B. Gerrard Jan 2021

America's Zero Carbon Action Plan: Federal Legislative And Administrative Framework, John C. Dernbach, Michael B. Gerrard

Faculty Scholarship

This chapter sets out proposed federal laws and policies for America's Zero Carbon Action Plan, a comprehensive report on how to achieve net-zero carbon emissions by 2050. This chapter sets forth recommendations for all four pillars of deep decarbonization – electricity decarbonization, energy efficiency and conservation, electrification of transportation and buildings, and carbon capture. It is supplemented with recommendations for significant reductions in emissions of non-carbon dioxide pollutants, as well as for changes in foreign policy. Each set of recommendations is accompanied by an explanation of the underlying strategy for the proposed changes.


Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang Jan 2021

Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang

Faculty Scholarship

Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation ...


The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill Jan 2021

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Faculty Scholarship

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property?

The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis ...


Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard Jan 2021

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.


The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel Jan 2021

The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel

Faculty Scholarship

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual ...


Domain-Specific Plurilateral Cooperation As An Alternative To Trade Agreements, Bernard M. Hoekman, Charles F. Sabel Jan 2021

Domain-Specific Plurilateral Cooperation As An Alternative To Trade Agreements, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review, and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters ...


Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault Jan 2021

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Faculty Scholarship

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in ...


Distributional Arguments, In Reverse, Alex Raskolnikov Jan 2021

Distributional Arguments, In Reverse, Alex Raskolnikov

Faculty Scholarship

This Article contends that the government should consider – rather than ignore – distributional consequences both in the design of legal rules and during legal transitions. This does not mean that the distributional effect of every legal rule should be measured and taken into account in the rule’s design. But if the likely distributional effects are unintended, large, and objectionable, if the efficiency of the legal rule is doubtful, if the compensating tax-and-transfer adjustment is not forthcoming (or has not occurred), policymakers should take distribution into account. One way of doing so is to choose among several alternative legal rules of ...


Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste Jan 2021

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing ...


Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg Jan 2021

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin ...


Price Gouging In A Pandemic, Christopher Buccafusco, Daniel Jacob Hemel, Eric L. Talley Jan 2021

Price Gouging In A Pandemic, Christopher Buccafusco, Daniel Jacob Hemel, Eric L. Talley

Faculty Scholarship

The ongoing Covid-19 pandemic has led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it has reawakened a debate about whether and how to regulate “price gouging.” Animating this controversy is a longstanding conflict between laissez-faire economics (which champions price fluctuations as a means to allocate scarce goods) and perceived norms of consumer fairness (which are thought to cut strongly against sharp price hikes amid shortages). This article provides a new, empirically grounded perspective on the price gouging debate that challenges several aspects of conventional wisdom. We report ...


Doctrinal Conflict In Foreign Investment Regulation In India: ​​Ntt Docomo Vs. Tata Sons And The Case For “Downside Protection”, M. P. Ram Mohan, Nobuhisa Ishizuka, Sidharth Sharma Jan 2021

Doctrinal Conflict In Foreign Investment Regulation In India: ​​Ntt Docomo Vs. Tata Sons And The Case For “Downside Protection”, M. P. Ram Mohan, Nobuhisa Ishizuka, Sidharth Sharma

Faculty Scholarship

The strategic importance of India as an investment destination for foreign investors is highlighted by ongoing tensions in the Indo-Pacific region, and the recognition that a strong economic relationship with India is in the interest of countries seeking a more stable balance of power in the region. From a policy perspective, India has struggled to balance its own economic interests with the commercial requirements of investors. Rules attempting to strike this balance have created uncertainties that have resulted in investors seeking greater protections, which in turn have triggered additional regulatory responses. The prevalent use of put options by foreign investors ...


A Perfectly Empty Gift, Christina D. Ponsa-Kraus Jan 2021

A Perfectly Empty Gift, Christina D. Ponsa-Kraus

Faculty Scholarship

“Almost citizens.” What does that even mean? It’s like being “kind of pregnant,” isn’t it? In other words, nonsense. Citizenship isn’t an “almost” kind of thing. It’s all or nothing. Unless, I suppose, the word “almost” is used in a simple temporal sense – as in, “Our naturalization ceremony is tomorrow. We’re almost citizens! Yay!” There, the phrase “almost citizens” makes sense. Otherwise not. Right?

Wrong. “Almost citizens,” in a sense as ambiguous as it sounds, is what Almost Citizens: Puerto Rico, the U S Constitution, and Empire is about. “Almost citizens” describes what Puerto Ricans ...


Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger Jan 2021

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new ...


Investigating The Contract Production Process, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati Jan 2021

Investigating The Contract Production Process, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

Contract law and theory have traditionally paid little attention to the processes by which contracts are made. Instead, contracts among sophisticated parties are assumed to be full articulations of the desires of the parties; whatever the process, the outcome is the same. This article compares sovereign debt contracts from US and UK firms, with different production processes, that are trying to do the same thing under very similar legal regimes. We find that that the production process likely matters quite a bit to the final form that contracts take.


Delegating Or Divesting?, Philip A. Hamburger Jan 2021

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article ...


Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell Jan 2021

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the ...


The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey Jan 2021

The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey

Faculty Scholarship

Mental health issues are all too common consequences of conflict and atrocity crimes, often causing upwards of one-quarter of the post-conflict, post-atrocity population to suffer from physical and mental sequelae that linger long after weapons have been silenced. After more than six years of ongoing conflict, Yemen’s already weak health care system is on the brink of collapse, and population resilience has been severely stressed by indiscriminate attacks, airstrikes, torture, food insecurity, unemployment, cholera, and now the COVID-19 pandemic. This paper examines Yemen’s responsibilities regarding the right to mental health and details the few actions the government has ...


Vaccination Equity By Design, Olatunde C.A. Johnson, Kristen Underhill Jan 2021

Vaccination Equity By Design, Olatunde C.A. Johnson, Kristen Underhill

Faculty Scholarship

This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.