Law Commons^™

Transforming The World With Reparations?, Ingrid Brunk, Monica Hakimi

Faculty Scholarship

Claims for reparations in international law commonly reflect two competing visions--one transformative, the other corrective. The transformative vision looks to reparations to end the long tail of injustices that are associated with large-scale historic harms. The corrective vision is more confined; it focuses on repairing specific, legally cognizable harms and returning the agents or entities involved as closely as possible to the status quo ante. We argue in this Essay that these two visions have distinct conceptual logics, even though they often overlap in practice, and that the transformative vision cannot carry the burdens that are placed on it.

Wealth Taxes Under The Constitution: An Originalist Analysis, David M. Schizer, Steven G. Calabresi

Faculty Scholarship

A federal wealth tax is high on the wish list of progressives, but is it constitutional? This Article shows that under the original public meaning of the Constitution, a wealth tax is a “direct tax” that must be apportioned. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states both have three percent of the population, each must provide three percent of the revenue. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share.

Article …

Being And Becoming In The Algorithmic Age, Bernard E. Harcourt

Faculty Scholarship

To change the world: the prerequisite, most often, is to change our experience of the world, to experience the world differently, to be shaken to our foundations, to have one’s sense of self shattered. That is a process of both being and becoming. In order to turn that process in our favour, in this age of artificial intelligence, it will be crucial to transform data and algorithms into bits of justice.

Annual Review Of Seqra Cases And Developments, Michael B. Gerrard

Faculty Scholarship

The New York State Environmental Quality Review Act (SEQRA) turns 50 this year. The statute has changed only a little in the last half century, but it continues to be a font of litigation. The courts decided 43 cases under SEQRA in 2024.

Implementation of SEQRA is also raising policy issues. The legislature is considering whether to amend SEQRA to speed up affordable housing projects, and the State Department of Environmental Conservation (DEC) is drafting regulations concerning the role SEQRA should play in advancing environmental justice.

A constant theme is the tension between thoroughly studying important project impacts and involving …

A Conversation About Stare Decisis, Debra A. Livingston, John Q. Barrett

Faculty Scholarship

John Q. Barrett (“JQB”)

Chief Judge Debra Ann Livingston, welcome back to St. John’s.

The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.

We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis. But first, we need to meet you and hear a little bit about your background — where you are from — and the path that took …

Taxprof Blog Op-Ed: More On The University Of Florida, The Adjunct Professor, And The Issues At Hand, Joshua E. Kastenberg

Faculty Scholarship

In assessing the conduct of the University of Florida’s law school leaders, Preston Damsky, Judge John Badalamenti, and the New York Times, I’ll concede that it is darn near impossible for any of us to be objective. But I’d like to contribute to this conversation in a way that at least attempts a degree of objectivity. This comment focuses on the judge turned adjunct professor, but to do so, there is a matter of context.

On Simple Competition Policy, Keith N. Hylton

Faculty Scholarship

These remarks address the topic of “simple competition policy for a complex world”.[1] There is much to be said in favor of simplicity in legal rules. Complex legal rules are often difficult for the individuals who must comply with the rules to understand what they mean. Complex rules are often confusing, and take a long time to understand, when in the real business world decisions must be made quickly – at the pace at which business occurs. Businessmen do not have the luxury that academics possess to read, discuss, and think about rules for long periods of time. Markets …

Opinion: The Constitution - Not Trump - Demands Our Allegiance, Christian G. Fritz

Faculty Scholarship

Supporting the Constitution not only requires submission to constitutional authority but implies resistance to powers that are exercised unconstitutionally. Such resistance might take the form of brave individuals living up to their oath of office or courts defending the rule of law and the Constitution. But while the Supreme Court plays a key role in interpreting the Constitution and holding a president in check, it has long been recognized that others besides the court have always been necessary to help monitor America’s constitutional order. The practice of resisting unconstitutional acts of the federal government by sounding the alarm was described …

Competition In The Global Law Market: Offshore Development Of The Statutory "Rule In Hastings-Bass", Andrew P. Morriss

Faculty Scholarship

This Article examines the competitive dynamics in the global law market through the lens of the statutory evolution of the Rule in Hastings-Bass across various International Financial Centers (IFCs). Following the UK Supreme Court's 2013 decision in Pitt v Holt and Futter v Futter, which significantly restricted the judiciary's ability to void trustee decisions under the Rule, seven IFCs (Jersey, Bermuda, The Bahamas, the Dubai International Financial Center, the Cayman Islands, and the British Virgin Islands) enacted statutes to preserve and clarify the Rule within their jurisdictions. These legislative actions highlight the strategic adaptations by IFCs to enhance their legal …

Water Flowing Down Wall Street, Vanessa Casado-Pérez

Faculty Scholarship

Water scarcity is a perennial problem with dire consequences for the United States and governments around the world. A lack of adequate water resources is a systematic cause of environmental harm, economic damage, and societal division. Climate change has exacerbated these problems making water even more valuable and essential.

Financial actors have turned water into the new oil. These large financial actors profiteer from buying and selling water without any interest in its actual use as an input of production. Instead, they typically seek to hold these rights until dire situations, like droughts and fires, cause temporary, but large, spikes …

Curative Identity Formation Themes To Counteract Law School’S Hidden Curriculum, Aric K. Short

Faculty Scholarship

Especially given the sensitive and malleable life stage that many of our students are in, law schools should take meaningful steps to blunt and counteract the negative effects of the hidden curriculum, including in ways suggested in other articles in this symposium. One direct way to present countervailing messaging is through a required 1L course on professional identity formation (PIF). As described in this article, there are a number of benefits of explicitly addressing PIF topics early in law school, and doing so not only more effectively prepares our students to become practicing attorneys, it also responds directly to some …

Nato Self-Defense – Is Article 5 The Right Framework For Responding To Sub-Kinetic Cyber Aggression?, Shreyas Kumar, Gary D. Brown, Srividhya Ragavan, Maddalena Cerrato, Gourav Nagar

Faculty Scholarship

Cyber aggression presents a significant challenge to traditional frameworks of collective defense, particularly under Article 5 of the NATO Washington Treaty, which obligates member states to respond collectively to an "armed attack." While NATO has acknowledged that cyber incidents may trigger Article 5, ambiguity persists over what constitutes a cyber "armed attack," especially in the absence of kinetic effects. This uncertainty complicates NATO’s ability to address increasingly prevalent sub-kinetic cyber threats, such as economic disruption, data manipulation, and interference in democratic processes. Unlike conventional military threats, cyber operations often fall below the traditional threshold of armed conflict while still exerting …

Ai For Good: Expanding Legal Services For Immigrants, Huyen Pham, Bryan Garcia

Faculty Scholarship

In this Essay, we explore the possibilities for putting AI technology in the hands of clients themselves, considering the advantages and disadvantages. Thinking about the specific context of immigration law, we could envision apps that help individuals to prepare for interviews for affirmative asylum, visas, or naturalization; to educate them about their rights in ways that are more specific, timely, and convenient than current know-your-rights formats; or, in a more attorney-adjacent interaction, using an app to conduct the initial intake interview and organize that information, making the usual time-consuming intake process more efficient and effective. We are not envisioning apps …

The Complex Interplay Between Intellectual Property And The Right To Science, Peter K. Yu

Faculty Scholarship

In April 2020, the U.N. Committee on Economic, Social and Cultural Rights released General Comment No. 25, which provides an authoritative interpretation of the right to science—a right that has hitherto not received much attention. In light of this publication and the recent celebration of the 75th anniversary of the Universal Declaration of Human Rights, this article examines the complex interplay between intellectual property and the right to science, with a view toward the human rights challenges brought about by both the COVID-19 pandemic and the arrival of generative AI.

The article begins by documenting the historical evolution of the …

Sails Symposium Launch On International Law Scholarship: What We Write, Where We Publish, And Why It Matters, Kathleen Claussen, Melissa J. Durkee, Rebecca Ingber, Steven Arrigg Koh

Faculty Scholarship

Despite the centrality of international law scholarship in international law, little work has been done to understand the contours and forces at work in what international law scholars write, where they publish that work, who reads international law scholarship, and scholarship's relationship to the policy world. For international lawyers, identifying answers to these questions and appreciating the impact of our collective work is essential, particularly at a moment of profound political struggle in communities around the world. We have remarkably few data as to what topics, methodologies, and perspectives of international law scholarship journals and publishers print, by whom, in …

How Domestic Institutions Shape The Global Tech War, Anu Bradford, Eileen Li, Matthew C. Waxman

Faculty Scholarship

The United States (U.S.), China, and the European Union (EU) are engaged in a national security-driven economic competition over advanced technology. Many scholars and commentators focus on the external dimension of this geopolitical contest; that is, they describe the strategic choices by each actor in terms of geopolitical realities, threat perceptions, and relative power. However, this Article brings to the fore the internal dimension of the global tech war. We argue that each player’s strategy in the tech war is a function of its internal features, including basic constitutional powers, domestic legal institutions, and the relationships between the government and …

Presidential Supremacy Over Administrative Agencies, Gary Gensler, Lev Menand

Faculty Scholarship

In the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress.

In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House than ‘executive’ agencies like the Department of State and the Department of Commerce. The administration is asserting an interpretation of the Constitution known as …

Tort Law Heterodoxy In China, Benjamin L. Liebman, Rachel E. Stern, Eva Wenwa Gao, Xiaohan Wu

Faculty Scholarship

Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, …

The Financial Sector And Global Dollar System, Gary Gensler, Lev Menand, Joshua Younger

Faculty Scholarship

The second Trump administration’s approach to financial markets and institutions mixes familiar deregulatory policies with a range of other policies (financial and non-financial) that are largely without precedent and may lead to significant structural change in the long term. Combined, these policies have the potential to affect the financial sector in at least four ways. First, they could threaten the foundations of the global dollar system – mutual cooperation, trust, and interdependency, both between the producers and consumers of financial instruments and among the nations that constitute the dollar bloc. Second, they may undermine financial stability by loosening prudential standards, …

The Changing Architecture Of Trust, Kathryn Judge

Faculty Scholarship

Trust has always been vital to the healthy functioning of financial markets and the stability of the financial institutions. The mix of public and private institutions that undergird this trust, however, can vary. Often these forces are ignored or taken for granted until something goes wrong. With a marked turn toward deregulation taking hold on both sides of the Atlantic, against a backdrop of central banks having played a very active role intervening to allay distress, it is a good time to revisit these fundamentals. This essay examines the importance of trust, how it is created, how it can be …

Looking For The Public In Public Law, Nikhil Menezes, David E. Pozen

Faculty Scholarship

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance — checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and …

After Notice And Choice: Reinvigorating “Unfairness” To Rein In Data Abuses, Lina M. Khan, Samuel A.A. Levine, Stephanie T. Nguyen

Faculty Scholarship

The Federal Trade Commission (FTC) has long served as America’s default privacy enforcer. Yet for much of its history, the agency relied on self-regulation through a “notice and choice” framework that left the public vulnerable in an era of rampant data collection and digital surveillance. Businesses overwhelmed users with dense privacy notices while amassing and exploiting vast troves of personal data. The agency’s historical approach, rooted in outdated assumptions about self-correcting markets and an ideologically cramped view of the FTC’s authorities and mandate, helped usher in a digital economy where data abuses became routine.

During the Biden Administration, the FTC …

Addressing Missingness In Serialized Bureaucratic Data: The Case Of Chinese Courts, Xiaohan Wu, Margaret Roberts, Rachel E. Stern, Benjamin L. Liebman, Amarnath Gupta, Luke Sanford

Faculty Scholarship

Courts around the world are putting their data online, making information about caseloads, parties, and decisions available to the public. Yet, this data is far from complete, and often only reflects a portion of courts’ dockets. We offer and validate a set of tools for leveraging serialized bureaucratic data from courts to estimate the proportion of cases available to the public and the time courts take to make decisions. Using data from more than 3,000 courts in China, our methods allow us to assess patterns of missingness in court data across provinces and cities by type of case and to …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Faculty Scholarship

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Bound: The Imaginative Surplus Of Contractual Intent, Elizabeth F. Emens

Faculty Scholarship

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, …

Litigating National Security In The Wto Era, Petros C. Mavroidis

Faculty Scholarship

From one dispute between 1948 and 1994, there have now been 14 requests for a panel establishment (based on the General Agreement on Tariffs and Trade (GATT), Article XXI – the exception for national security) during the World Trade Organization (WTO) era (1995–now). The majority of them ended up in the issuance of a panel report, all of which were issued after 5 April 2019. As the WTO Appellate Body has been dysfunctional as of November 2019, no appellate report has been issued. Appeals have been lodged, but as there is no Appellate Body to entertain them, they were lodged …

Beyond Issuers: The Future Of Private Securities Litigation, Joshua Mitts

Faculty Scholarship

Private securities litigation has traditionally been viewed as a subfield of corporate governance, reducing agency costs by disciplining wayward management. In this brief Symposium essay, I argue that the future of private securities litigation lies beyond issuers. I discuss how a fraud claim under Rule 10b-5 can be understood as a kind of economic tort, and set out, in broad strokes, an economic analysis of claims against non-issuer defendants. I then consider emerging trends in the case law against non-issuers in social media and market manipulation cases. I conclude by identifying some challenges and opportunities for securities litigation in a …

The Past, Present, And Future Of Proxy Voting Choice, Dorothy S. Lund

Faculty Scholarship

This article provides an early attempt at understanding what voluntary pass-through voting could mean for the marketplace. I first provide an overview of my argument in my 2018 Journal of Corporation Law article and the events that followed. I then survey passthrough voting initiatives that have taken hold at three asset managers — BlackRock, Vanguard, and State Street. I then conclude with some preliminary observations about how voting choice is likely to affect the proxy voting landscape and outline open questions.

Law Enforcement Privilege, Rebecca Wexler

Faculty Scholarship

You can’t question a secret you haven’t been told. The criminal legal system depends on fair and open proceedings to expose and regulate unlawful and unconstitutional police conduct through the courts. If police can use claims of secrecy to systematically thwart criminal defendants’ access to evidence, judicial review will fail. And yet that is exactly what is happening under a common-law doctrine called the “law enforcement privilege.” The privilege empowers police and prosecutors to rely on the results of secret investigative methods while withholding information from the defense about how those methods work. It risks perpetuating unconstitutional conduct, enabling wrongful …

(De)Funding Family Separations, Joshua Gupta-Kagan

Faculty Scholarship

Federal foster care funding exists in tension with foundational family law principles. The law protects family integrity: the state may only separate parents and children in extreme cases, and, when it does, the state must work to reunify families. Yet the federal funding system directs billions of federal dollars to support CPS agencies and pay subsidies to foster parents, adoptive parents, and guardians. It does so via an open-ended entitlement, so that the more families a state separates, the more federal funds it receives. This system makes it relatively cheaper for CPS agencies to take custody of children, incentivizes states …