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Debating Immigration Restriction: The Case For Low And Slow, Amy L. Wax Nov 2018

Debating Immigration Restriction: The Case For Low And Slow, Amy L. Wax

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This article critiques our current politics of immigration, which is dominated by moralized and sentimental rhetoric. It argues for a more honest and balanced discussion of the merits of the status quo. A more mature debate would take into account many factors that now receive insufficient attention from politicians, academics, and the mainstream media, including the interests of voters and citizens as well as newcomers, legitimate nationalistic concerns both economic and cultural, the need for unity, stability, and cohesion through assimilation to a common culture, the primacy of American sovereignty through the maintenance of secure borders, and the integrity of …


Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad Nov 2018

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

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The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …


A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson Oct 2018

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

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It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one …


The Securities Law Implications Of Financial Illiteracy, Lisa Fairfax Oct 2018

The Securities Law Implications Of Financial Illiteracy, Lisa Fairfax

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Every financial literacy study conducted over the last few decades concurs: Americans, including American investors, are financially illiterate. This Article argues that America’s financial illiteracy poses a significant, widespread, and long-term challenge for our federal securities regime because that regime is premised almost entirely on disclosure as the best form of investor protection and, by extension, on investors’ ability to understand disclosure. By advancing a typology of investors and their disclosure needs, this Article further argues that we may have significantly underestimated the extent of the financial illiteracy problem based on at least two flawed assumptions. First, we have presumed …


The Salience Theory Of Consumer Financial Regulation, Natasha Sarin Aug 2018

The Salience Theory Of Consumer Financial Regulation, Natasha Sarin

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Prior to the financial crisis, banks’ fee income was their fastest-growing source of revenue. This revenue was often generated through nefarious bank practices (e.g., ordering overdraft transactions for maximal fees). The crisis focused popular attention on the extent to which current regulatory tools failed consumers in these markets, and policymakers responded: A new Consumer Financial Protection Bureau was tasked with monitoring consumer finance products, and some of the earliest post-crisis financial reforms sought to lower consumer costs. This Article is the first to empirically evaluate the success of the consumer finance reform agenda by considering three recent price regulations: a …


Marginal Rates Under The Tcja, Reed Shuldiner Jun 2018

Marginal Rates Under The Tcja, Reed Shuldiner

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In this report, Shuldiner argues that although the Tax Cuts and Jobs Act appears to offer an across-the board reduction in individual marginal tax rates augmented by an additional 20 percent reduction in rates on unincorporated business income, the situation is significantly more complex.


Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr. Jun 2018

Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr.

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This Essay draws both on my scholarly and on my personal experience as a member of Puerto Rico’s oversight board to assess the first two years of the Board’s existence. I begin in a scholarly mode, by exploring the question of where P.R.O.M.E.S.A., the legislation that created the Board, came from. P.R.O.M.E.S.A.’s core provisions are, I will argue, the product of two historical patterns that have emerged in responses to the financial distress of public entities in the United States. The first dates back to the 1970s crisis in New York City, while the second is much more recent. If …


Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe Jun 2018

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

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In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …


1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson Jun 2018

1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …


A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis May 2018

A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis

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Since 2006, the Illinois Human Rights Act has prohibited discrimination in employment because of an employee’s sexual orientation or gender identity. Until 2017, employees discriminated against because of their sexual orientation had no federal cause of action, however. In a landmark decision, Hively v. Ivy Tech, the Court of Appeals for the Seventh Circuit became the first appellate court to hold that federal law’s prohibition of sex discrimination in the workplace also proscribed sexual orientation discrimination. The Hively decision is a substantial departure from decades’ worth of Seventh Circuit precedent and created a split between the circuits. This Article examines …


Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo Apr 2018

Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo

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Although the debate over hipster antitrust is often portrayed as something new, experienced observers recognize it as a replay of an old argument that was resolved by the global consensus that antitrust should focus on consumer welfare rather than on the size of firms, the levels of industry concentration, and other considerations. Moreover, the history of the Federal Trade Commission’s Section 5 authority to prevent unfair methods of competition stands as a reminder of the dangers of allowing enforcement policy to be guided by vague and uncertain standards.


The Dynamic Impact Of Periodic Review On Women’S Rights, Cosette D. Creamer, Beth A. Simmons Feb 2018

The Dynamic Impact Of Periodic Review On Women’S Rights, Cosette D. Creamer, Beth A. Simmons

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Human rights treaty bodies have been frequently criticized as useless and the regime’s self-reporting procedure widely viewed as a whitewash. Yet very little research explores what, if any, influence this periodic review process has on governments’ implementation of and compliance with treaty obligations. We argue oversight committees may play an important role in improving rights on the ground by providing information for international and primarily domestic audiences. This paper examines the cumulative effects on women’s rights of self-reporting and oversight review, using original data on the history of state reporting to and review by the Committee on the Elimination of …


Convergence And Divergence In International Economic Law And Politics, Sungjoon Cho, Jürgen Kurtz Feb 2018

Convergence And Divergence In International Economic Law And Politics, Sungjoon Cho, Jürgen Kurtz

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This article explores the phenomena of convergence and divergence in international economic law. It argues that both international trade and investment law have been forced to overcome a structural (legal-institutional) prioritization of market goals via competing social regulatory concerns. It is at this stress point that we argue that a powerful set of converging and procedurally orientated hermeneutics can be identified in the jurisprudence that, properly employed, could significantly bolster the elasticity and durability of state commitment to international economic law constraints. There remain, however, continuing textual and systemic divergences at play, which opponents will often dismiss for reasons of …


Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders Jan 2018

Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders

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Let me start by just stating my experience of reading The Rule of Law in the Real World1 because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn …


The Ecology Of Transparency Reloaded, Seth F. Kreimer Jan 2018

The Ecology Of Transparency Reloaded, Seth F. Kreimer

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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

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This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …


The Rule Of Reason, Herbert J. Hovenkamp Jan 2018

The Rule Of Reason, Herbert J. Hovenkamp

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Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.

This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up …


Exclusionary Megacities, Wendell Pritchett, Shitong Qiao Jan 2018

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

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Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” …


Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips Jan 2018

Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips

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For artists, nonprofits, community organizations and small-business clients of limited means, securing intellectual property rights and getting counseling involving patent, copyright and trademark law are critical to their success and growth. These clients need expert IP and technology legal assistance, but very often cannot afford services in the legal marketplace. In addition, legal services and state bar pro bono programs have generally been ill-equipped to assist in these more specialized areas. An expanding community of IP and Technology clinics has emerged across the country to meet these needs. But while law review articles have described and examined other sectors of …


Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman Jan 2018

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

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This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …


When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis Jan 2018

When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis

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Ending all forms of discrimination against women and girls is not only a basic human right, but also crucial to accelerating sustainable development. The very first target of Goal 5. 1.1 calls to end all forms of discrimination against all women and girls everywhere and the indicator for the goal is: “Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex”. In many countries around the world the legal frameworks themselves allow for both direct (de jure) and indirect (de facto) discrimination against women. This essay identifies some areas …


The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson Jan 2018

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

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This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …


The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman Jan 2018

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

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This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …


A Dose Of Color, A Dose Of Reality: Contextualizing Intentional Tort Actions With Black Documentaries, Regina Austin Jan 2018

A Dose Of Color, A Dose Of Reality: Contextualizing Intentional Tort Actions With Black Documentaries, Regina Austin

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This article describes the way documentary films can provide important cultural context in the assessment of tort claims. This kind of contextual analysis exposes the social conditions that drive legal disputes. For example, in the case of Klayman v. Obama, Larry Klayman claimed that Black Lives Matter, among other defendants, was liable for various intentional torts (including intentional infliction of emotional distress) by fomenting hostility toward the police in black communities. The court dismissed the case but declined to hold Klayman liable for sanctions. One documentary film, I Am Not Your Negro, locates Klayman’s claims in a historical …


Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris Jan 2018

Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris

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The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …


Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis Jan 2018

Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis

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Sital Kalantry’s Women’s Human Rights and Migration: Sex Selective Abortion Laws in the United States and India addresses a long-existing gap in feminist theory at the intersection of a migrant woman’s experience and culturally motivated reproductive decisions. By recognising the possibility that ‘practices that are oppressive to women in one country context may not have a negative impact on women in another country context’ Kalantry takes an important step in creating a framework for evaluating competing human rights interests within the complex cultural contexts that arise in migrant-receiving countries. Her proposed framework rejects the decontextualisation and politicisation of the migrant …


The Economics Of Immigration Reform, Howard F. Chang Jan 2018

The Economics Of Immigration Reform, Howard F. Chang

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In this article, I draw upon economic theory and recent empirical work on the economic and fiscal effects of immigration to evaluate some recent proposals for immigration reform in terms of their effects on the economic welfare of natives in the United States. In particular, I consider the Reforming American Immigration for a Strong Economy (RAISE) Act, a bill that would cut immigration to half of its current level. President Donald Trump has endorsed the RAISE Act and has insisted that many of its provisions be part of any legislation legalizing the status of unauthorized immigrants granted relief under the …


The Global Diffusion Of Law: Transnational Crime And The Case Of Human Trafficking, Beth A. Simmons, Paulette Lloyd, Brandon M. Steward Jan 2018

The Global Diffusion Of Law: Transnational Crime And The Case Of Human Trafficking, Beth A. Simmons, Paulette Lloyd, Brandon M. Steward

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The past few decades have seen the proliferation of new laws criminalizing certain transnational activities, from money laundering to corruption; from insider trading to trafficking in weapons and drugs. Human trafficking is one example. We argue criminalization of trafficking in persons has diffused in large part because of the way the issue has been framed: primarily as a problem of organized crime rather than predominantly an egregious human rights abuse. Framing human trafficking as an organized crime practice empowers states to confront cross border human movements viewed as potentially threatening. We show that the diffusion of criminalization is explained by …


In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders Jan 2018

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

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I want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe's persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for "utility" broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and our lives, …


Relational Contracts Of Adhesion, David A. Hoffman Jan 2018

Relational Contracts Of Adhesion, David A. Hoffman

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Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short: consumers are apparently regulated by digital fine print, though it’s universally assumed we don’t read it, and even if we did, we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? The conventional …