Law Commons^™

For-Profit Managers As Public Fiduciaries: A Neo-Classical Republican Perspective, Rob Atkinson

Scholarly Publications

This Article examines the fiduciary duties of for-profit managers in modern liberal society. To arrive at the right "mix" of these duties, it compares the fiduciary duties implied by a standard descriptive model of our society with two competing normative models: Lockean libertarianism on the "right" and neo-classical republicanism on the "left." This comparison shows that all three versions of liberalism, even the one with a Lockean nightwatchman state, require far more extensive duties than we now expect, including a professionalization of management itself. And it shows that the version of liberalism with the most expansive state, neo-classical republicanism, requires …

Federalism As Legal Pluralism, Erin Ryan

Scholarly Publications

This chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the larger legal pluralism discourse that has emerged in recent decades. Legal pluralism explores the significance of the multiple sources of legal authority and identity with which individuals simultaneously engage. These overlapping sources of normative authority range from local, national, and international institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Scholarly advocates of legal pluralism challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving …

Rationing The Constitution Vs. Negotiating It: Coan, Mud, And Crystals In The Context Of Dual Sovereignty, Erin Ryan

Scholarly Publications

In RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME DECISION-MAKING, Professor Andrew Coan makes the provocative argument that judicial capacity is the most determinative factor in the Supreme Court’s constitutional interpretation, especially regarding such critical realms as equal protection, takings, and the separation of powers. He contends that the Court’s legitimate anxiety over managing workflow to the federal bench operates more powerfully to shape its responses to questions raised in these areas of law than any alternative theory of constitutional interpretation, including doctrinal models popular most among legal academics and strategic models more popular among political scientists. Some readers will …

Lessons From The Coronavirus Pandemic For Environmental Governance, Erin Ryan

Scholarly Publications

This very short essay distills lessons from the U.S. response to the COVID-19 pandemic for leaders everywhere about how—and how not—to manage complex interjurisdictional challenges, like the environment, which unfold without regard for political boundaries. In a matter of months, COVID-19 has laid bare the interdependence of the world on every front imaginable: global public health, economic growth and development, social and professional networks, transportation and migration, and of course, ecological and environmental systems. No single nation has the coronavirus. No one state is economically disrupted. There is no single ethnic group, occupation, or corner of the world that has …

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

Melville's Billy Budd And Plato's Republic: Sea Captains And Philosopher-Kings, Rob Atkinson

Scholarly Publications

This article shows how Melville's Billy Budd, rightly one of law and literature's most widely studied canonical texts, answers Plato's challenge in Book X of the Republic: Show how "poets" create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic's philosopher-king, even as his story is precisely the sort of "poetry" that Plato should willingly allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law's agents must be wise, even as their law must be philosophical, if …

Environmental Law. Disrupted., Erin Ryan

Scholarly Publications

The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this latest in a biannual series of postings and essays, the authors, members of the Environmental Law Collaborative (ELC), have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats; and, if not, what the path forward …

From Mono Lake To The Atmospheric Trust: Navigating The Public And Private Interests In Public Trust Resource Commons, Erin Ryan

Scholarly Publications

This Article partners a summary of the Mono Lake story — one of the all-time great tales of environmental, property, and water law — with additional historical context, expanded legal analysis, and new reporting on contemporary public trust developments, especially Juliana vs. United States and the unfolding atmospheric trust climate litigation. The Mono Lake case and its progeny — in which the public trust doctrine has been applied in contexts ranging from takings litigation to groundwater management to fracking regulation and now to climate change — prompt reflection about the way the public trust doctrine navigates complex conflicts between public …

Formalism And Realism In Campaign Finance Law, Jacob Eisler

Scholarly Publications

No abstract provided.

No Longer Immune? How Network Theory Decodes Normative Shifts In Personal Immunity For Heads Of State, Nadia Banteka

Scholarly Publications

The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity movements, coupled with pleas for international criminal responsibility for egregious human rights and humanitarian violations, have eroded them, particulary within international jurisdictions. These changes reflect a larger challenge to the traditional statecentric model. Although states remain the primary makers of international law, many other participants, including international organizations, courts, and non-governmental oganizations (NGOs), are crucial to the development of international legal norms …

The Rise Of The Extreme Right And The Crime Of Terrorism: Ideology, Mobilization, And The Case Of Golden Dawn, Nadia Banteka

Scholarly Publications

The past decade has witnessed the rise in popularity of organizations and political parties founded on the extreme nationalism and populism that characterized the interwar period's fascist and Nazi parties. These organizations have become known as the "alt-right" and include white supremacists, neo-Nazis, neo-fascists, and other extreme right-wing fringe groups. Extreme right-wing political parties have also enjoyed electoral victories while promulgating xenophobia and hatred based on race, religion, ethnicity, nationality, and sexual orientation. This article examines the resurgence of such extreme right-wing political parties and the relationship between right-wing extremism, political parties, and terrorism. The goal of this article is …

Asymmetric Effects On Fatality Rates Of Changes In Workers' Compensation Laws, Elissa Philip Gentry, W. Kip Viscusi

Scholarly Publications

With irreversible investments in safety, changes in workers' compensation laws should affect employer incentives asymmetrically: increases in workers' compensation generosity should cause employers to invest more in safety, but comparable decreases might not cause them to disinvest in existing precautionary programs or equipment. Although maximum weekly benefits caps have been fairly stable, state laws have expanded or restricted workers' compensation on multiple other dimensions. State laws may impose new requirements regarding burdens of proof, access to medical care, and the duration of benefits. This article estimates the effect of changes in these more comprehensive measures of workers' compensation laws on …

A Network Theory Approach To Global Legislative Action, Nadia Banteka

Scholarly Publications

No abstract provided.

Looking Forward And Back In Time Of Transitions, Jacob Eisler

Scholarly Publications

No abstract provided.

Partisan Gerrymandering And The Constitutionalization Of Statistics, Jacob Eisler

Scholarly Publications

Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court's most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy. This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. …

Disaggregating Nationwide Injunctions, Michael T. Morley

Scholarly Publications

Nationwide injunctions have become a focus of heated judicial, academic, and even public debate. Much of this analysis treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term may apply to five different categories of orders of national applicability, each of which raises very different constitutional, fairness, rule-based, structural, prudential, and other concerns.

This Article presents a taxonomy of the five types of nationwide injunctions and the proper judicial treatment of each. Rather than focusing on the geographic applicability and scope of a court order, injunctions should instead be categorized based …

Republicans And The Voting Rights Act, Michael T. Morley

Scholarly Publications

No abstract provided.

Placebo Marks, Jake Linford

Scholarly Publications

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer.

A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …

Debate On Carried Interest, Jeffrey H. Kahn, Calvin H. Johnson, Douglas A. Kahn

Scholarly Publications

No abstract provided.

Cooperation And Turnover In Law Faculties: A Game-Theoretic Model And An Empirical Study, Shi-Ling Hsu

Scholarly Publications

A standard account of group cooperation would predict that group stability would bring about greater cooperation because repeat-play games would allow for sanctions and rewards. In an academic unit such as a department or a law faculty, one might thus expect that faculty stability would bring about greater cooperation. However, academic units are not like most other groups. Tenured professors face only limited sanctions for failing to cooperate, for engaging in unproductive conflict, or for shirking. This article argues counter-intuitively that within limits, some level of faculty turnover may enhance cooperation. Certainly, excessive and persistent loss of faculty is demoralizing, …

The Story Of Parenthood, Courtney Cahill

Scholarly Publications

No abstract provided.

A Process-Based Approach To Presidential Exit, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Partisan Gerrymandering And The Illusion Of Unfairness, Jacob Eisler

Scholarly Publications

No abstract provided.

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

The Upsides And Downsides Of Ending Chevron Deference, Steve R. Johnson, Kristin E. Hickman, Joseph B. Judkins, Donald B. Susswein

Scholarly Publications

No abstract provided.

Consumers, Sellers-Advisors, And The Psychology Of Trust, Kelli Alces Williams, Justin Sevier

Scholarly Publications

Every day, consumers ask sellers for advice. Because they do not or cannot know better, consumers rely on that advice in making financial decisions of varying significance. Sellers, motivated by strong and often conflicting self-interests, are well-positioned to lead consumers to make decisions that are profitable for sellers and may be harmful to the consumers themselves. Short of imposing fraud liability in extreme situations, the law neither protects the trust consumers place in “seller-advisors,” nor alerts them to the incentives motivating the advice that sellers give. This Article makes several contributions to the literature. First, it identifies and defines the …

Populist Constitutions, David Landau

Scholarly Publications

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …

Tiered Constitutional Design, David Landau, Rosalind Dixon

Scholarly Publications

Scholarship has posited two models of constitutionalism. One is short, abstract, and rigid, like the United States Constitution. The other is lengthy, detailed, and flexible, like the constitutions found in many U.S. states and in many other countries around the world. This Article argues that there is a descriptively common and normatively attractive third model: tiered constitutional design. A tiered design aims to combine the virtues of rigidity and flexibility by creating different rules of constitutional amendment for different parts of the constitution. Most provisions are made fairly easy to change, but certain articles or principles are given higher levels …

Perfecting Procreation, Courtney Cahill

Scholarly Publications

No abstract provided.

Memo To Environmentalists: Brace For The Three Ps, Erin Ryan

Scholarly Publications

This very short essay, written as a memo to environmental advocates during a destabilizing moment in environmental law, advises them to (1) resist federal preemption of state regulation, (2) scrutinize the strategic deployment of property rights to block future regulation, and (3) think creatively about how to accomplish the goals of national-level policy without the benefit of federal authority. In short, it advises that advocates ensure that the campaign to dismantle federal environmental law does not spill over into displacing state and local efforts to fill the void. They also must push back against the strategic deployment of property rights …