Law Commons^™

A Scholarly Error And A Larger Truth, Philip A. Hamburger

Faculty Scholarship

Can Congress delegate its legislative power? The question has stimulated much recent scholarship, including Professor Nicholas Parrillo’s detailed study of the 1798 federal tax act. According to his article, the statute delegated binding rulemaking power. My recent SSRN draft Nondelegation Blues questions Parrillo’s conclusion. But now in this blog, he suggests that my article misreads his argument.

The New Public/Private Equilibrium And The Regulation Of Public Companies, Elisabeth De Fontenay, Gabriel Rauterberg

Faculty Scholarship

This Symposium Article examines how the public/private divide works today and maps out some of the potential implications for major issues in securities law. Classic debates in securities law were often predicated on the idea that public companies are a coherent class of firms that differ markedly from private companies. For more than fifty years after the adoption of the federal securities laws, this view was justified. During that period, the vast majority of successful and growing private firms eventually accepted the regulatory obligations of being public in order to access a wider and deeper pool of capital, among other …

What Is The Law's Role In A Recession?, Gabriel Rauterberg, Joshua Younger

Faculty Scholarship

In March 2020, the world faced not only a public health emergency but also one of the most profound shocks to the global economy in the modern era — a shock deeper and broader than any other in eighty years. Never before had virtually all of the world’s economies suffered a contraction at the same time (Tooze, p. 5). Global output decreased by nearly 3.4% in 2020, the largest contraction since the Second World War. The United States saw the largest recorded demand shock in its history (-32.9%), and the unemployment rate peaked around 15% during 2020, higher than at …

The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …

Of Autonomy, Sacred Rights, And Personal Marks, Shyamkrishna Balganesh

Faculty Scholarship

This Response examines three different senses in which the idea of autonomy might operate within trademark law’s rules relating to personal marks (i.e., marks that identity an individual) and shows that each of them is critically incomplete or too weak to independently sustain the justificatory burden for the domain. It then examines the worrisome possibility that courts’ allusions to autonomy here are little more than a trope for other considerations. It finally looks at how a genuine commitment to autonomy might be integrated into the principally market-driven framework of trademark law.

An Attack On Local Authority, Richard Briffault, Kim Haddow

Faculty Scholarship

In the 2021 legislative sessions, Republican state lawmakers introduced a glut of preemption bills aimed at giving states more power over the administration of local government operations, signifying a new, deeper level of state interference into the inner workings of cities and counties. . . . Entering the 2021 legislative sessions, Republican state lawmakers used their power to respond to the events of 2020 – the pandemic, the racial justice movement, the presidential election, and what they perceived to be local government overreach (Brownstein 2021) – by introducing a surge of preemption bills aimed at appropriating the machinery of local …

Evaluating Legal Needs, Luz Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas – a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, …

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

The Insular Cases Run Amok: Against Constitutional Exceptionalism In The Territories, Christina D. Ponsa-Kraus

Faculty Scholarship

The Insular Cases have been enjoying an improbable — and unfortunate — renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 — Puerto Rico, the Philippines, and Guam — “belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the …

Election Law Localism And Democracy, Richard Briffault

Faculty Scholarship

American federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of …

Legal Coding Beyond Capital?, Katharina Pistor

Faculty Scholarship

Capital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law. Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion. Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the …

Principles For Responsibility Sharing: Proximity, Culpability, Moral Accountability, And Capability, Michael W. Doyle, Janine Prantl, Mark J. Wood

Faculty Scholarship

In this Essay, we explore how responsibility based on culpability, moral accountability, and capability can improve the current regime that rests on responsibility by proximity. In doing so, we draw on the 2017 Model International Mobility Convention (MIMC), a model convention drafted by a commission of independent experts and currently supported as a project of the Carnegie Council for Ethics in International Affairs.

Systemic Stewardship, Jeffrey N. Gordon

Faculty Scholarship

This Article frames a normative theory of stewardship engagement by large institutional investors and asset managers that is congruent with their theory of investment management — “Modern Portfolio Theory” — which describes investors as attentive to both systematic risk as well as expected returns. Because investors want to maximize risk-adjusted returns, it will serve their interests for asset managers to support and sometimes advance shareholder initiatives that will reduce systematic risk. “Systematic stewardship” provides an approach to “ESG” matters that serves both investor welfare and social welfare and fits the business model of large, diversified funds, especially index funds. The …

Public Nuisance As Risk Regulation, Thomas W. Merrill

Faculty Scholarship

Public nuisance has always been defined in terms of the object of protection – the community, the public, or perhaps even the state as a whole. Public nuisance in this regard has been juxtaposed to private nuisance, which protects individual persons and their use and enjoyment of land. Commentary on public nuisance has thus long been concerned with defining (without notable success) what it means to advance a public as opposed to a private right.

In this paper, I offer a different take on the function of public nuisance. The common law is designed to provide redress for actual harm, …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent.

This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts …

Stress Testing During Times Of War, Kathryn Judge

Faculty Scholarship

In the spring of 2009, the United States was mired in the greatest recession it had faced since the Great Depression. In March, the Dow Jones Industrial Average had fallen to 6,594.44, a total decline of 53.4 percent from its peak in the fall of 2007. The official unemployment rate was over 9 percent and still trending upward, eventually exceeding 10 percent. With the support of Congress, the Federal Reserve (the Fed) and other financial regulators had launched an array of initiatives to contain the fallout of what had become a global financial crisis. These interventions, including a massive recapitalization …

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …

Discriminatory Taint, Kerrel Murray

Faculty Scholarship

The truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if the policies diverge in design and designer? Does such a relationship condemn the later policy for all times and purposes, or can a later decisionmaker escape the past? It is an old problem, but its resolution hardly seems impending. Just recently, Supreme Court cases have confronted this fact pattern across subject matters as diverse as entry restrictions, nonunanimous juries, and redistricting, among others. Majority opinions seem unsure whether or why …

Normative Powers, Joseph Raz

Faculty Scholarship

The chapter provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyses several kinds of such powers. It distinguishes between wide normative powers possessed by any act that non-causally results in a normative change, and narrow normative powers, which are the main topic of the chapter. The most important theses of the chapter are: First, the distinction between basic normative powers and chained normative powers (the latter being powers created by the exercise of other powers) and second, defending the apparently surprising claim that people have narrow powers when and because there …

20 Years Of Trade Secrets Scholarship (2002-2022), Sharon Sandeen

Faculty Scholarship

No abstract provided.

Where's The Beef? Meat Shortages, Farmer Needs, And Long-Term Recovery Policies In A Pandemic Era, Kim Vu-Dinh

Faculty Scholarship

COVID-19 not only affected every hospital bed in the nation--if not the world; it also affected nearly every dinner table in America and beyond. Supply chain disruptions caused by the pandemic highlighted deep-seated problems with how we get our meat, and how difficult we make it for American farmers to sell to the family next door. Within a few months of the first reported case in the US, hundreds of workers from just two meat-processing plants on American shores became infected with COVID-19, and imports from around the world came to a standstill as factories and shipping companies were forced …

Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O’Neill, Eric Biber, Nicholas Marantz

Faculty Scholarship

California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …

New Media Rights' Internet & Media Law Clinic: California Western School Of Law, Art Neill

Faculty Scholarship

This article looks at the critical need for legal services addressing new media rights and the types of cases that benefit from the New Media Rights’ Internet & Media Law Clinic at California Western School of Law (New Media Rights) in San Diego.

This article will discuss New Media Rights in four parts: 1. Why do we have IP, arts, and technology clinics like New Media Rights? 2. What is New Media Rights, and how do we benefit the students and the community? 3. What is the structure and pedagogy of the clinic? 4. What are our hopes looking forward?

Released, But Not Free: The Unexonerated, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Corporate Governance And The Feminization Of Capital, Sarah Haan

Faculty Scholarship

No abstract provided.

Lower Court Originalism, Ryan Williams

Faculty Scholarship

No abstract provided.

Plurality Decisions And The Ambiguity Of Precedential Authority, Ryan Williams

Faculty Scholarship

No abstract provided.

Tinhatting The Constitution: Originalism As A Fandom, Stacey M. Lantagne

Faculty Scholarship

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves …

What's Wrong With The Ncaa's New Transgender Athlete Policy?, Erin E. Buzuvis

Faculty Scholarship

This Article examines the NCAA’s 2022 transgender athlete participation policy, which replaced the 2011 uniform eligibility rule with a sport-by-sport approach deferring to external governing bodies. It assesses the ambiguities created by this deference, particularly in sports where no clear policy exists, as well as the arbitrariness of the default testosterone threshold the NCAA adopted. It analyzes the tension between the NCAA’s stated alignment with Olympic frameworks and the reality that those frameworks were not designed for the collegiate context. It also considers the legal risks posed to NCAA member institutions, including potential liability under Title IX and the Equal …

Weaponizing Fear, Lisa S. Washington

Faculty Scholarship

No abstract provided.