Law Commons^™

Christianity And Bankruptcy, David A. Skeel Jr.

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Although the term “bankruptcy” is nowhere to be found in the Bible, debt and the consequences of default are a major theme both in the Hebrew Bible and in the New Testament. In Israel, as in the ancient Near East generally, a debtor who defaulted on his obligations was often sold into slavery or servitude. Biblical law moderated the harshness of this system by prohibiting Israelites from charging interest on loans to one another, thus diminishing the risk of default, and by requiring the release of slaves after seven years of service. Jesus alluded to the lending laws at least …

Dimensions Of Delegation, Cary Coglianese

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How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine Jr.

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To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to and make …

Rulers Or Rules? International Law, Elite Cues And Public Opinion, Anton Strezhnev, Beth A. Simmons, Matthew D. Kim

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One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on …

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

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This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …

Autonomy, Gideon Parchomovsky, Alex Stein

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Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or, worse, …

Regulating E-Cigarettes: Why Policies Diverge, Eric A. Feldman

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This paper, part of a festschrift in honor of Professor Malcolm Feeley, explores the landscape of e-cigarette policy globally by looking at three jurisdictions that have taken starkly different approaches to regulating e-cigarettes—the US, Japan, and China. Each of those countries has a robust tobacco industry, government agencies entrusted with protecting public health, an active and sophisticated scientific and medical community, and a regulatory structure for managing new pharmaceutical, tobacco, and consumer products. All three are signatories of the World Health Organization’s Framework Convention on Tobacco Control, all are signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights, …

Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel Walters

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A great deal of skepticism toward administrative agencies stems from the widespread perception that they excessively or even exclusively cater to business interests. From the political right comes the accusation that business interests use regulation to erect barriers to entry that protect profits and stifle competition. From the political left comes the claim that business interests use secretive interactions with agencies to erode and negate beneficial regulatory programs. Regulatory “capture” theory elevates many of these claims to the status of economic law. Despite growing skepticism about capture theory in academic circles, empirical studies of business influence and capture return ambiguous …

The Semi-Autonomous Administrative State, Cary Coglianese

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Conflicting views about presidential control of the administrative state have too long been characterized in terms of a debate over agency independence. But the term “independent” when used to describe administrative agencies carries with it the baggage of an unhelpful and unrealistic dichotomy: administrative agencies that are (or should be) subservient to presidential control versus those that are (or should be) entirely free from such influence. No agency fits into either category. This essay proposes reorienting the debate over presidential control around agency “autonomy,” which better conveys that the key issue is a matter of degree. Contrary to some proponents …

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

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In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature …

Borders Rules, Beth A. Simmons

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International political borders have historically performed one overriding function: the delimitation of a state’s territorial jurisdiction, but today they are sites of intense security scrutiny and law enforcement. Traditionally they were created to secure peace through territorial independence of political units. Today borders face new pressures from heightened human mobility, economic interdependence (legal and illicit), and perceived challenges from a host of nonstate threats. Research has only begun to reveal what some of these changes mean for the governance of interstate borders. The problems surrounding international borders today go well-beyond traditional delineation and delimitation. These problems call for active forms …

Do Self-Reporting Regimes Matter? Evidence From The Convention Against Torture, Beth A. Simmons, Cosette D. Creamer

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International regulatory agreements depend largely on self-reporting for implementation, yet we know almost nothing about whether or how such mechanisms work. We theorize that self-reporting processes provide information for domestic constituencies, with the potential to create pressure for better compliance. Using original data on state reports submitted to the Committee Against Torture, we demonstrate the influence of this process on the pervasiveness of torture and inhumane treatment. We illustrate the power of self-reporting regimes to mobilize domestic politics through evidence of civil society participation in shadow reporting, media attention, and legislative activity around anti-torture law and practice. This is the …

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

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Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing …

The Operational And Administrative Militaries, Mark P. Nevitt

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This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Pledging, Populism, And The Paris Agreement: The Paradox Of A Management-Based Approach To Global Governance, Cary Coglianese

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For many observers, the Paris Agreement signaled a historic breakthrough in addressing the problem of global warming. In its basic design, however, the Agreement is far from novel. Its dependence on each nation’s self-determined pledge to reduce greenhouse gases mirrors the domestic policy strategy called management-based regulation—a flexible regulatory approach that has been used to address problems as varied as food safety and toxic air pollution. In this article, I connect insights from research on management-based regulation to the international governance of climate change. Unfortunately, management-based regulation’s track-record at the domestic level gives little reason to expect that the Paris …