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Full-Text Articles in Law

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford Jul 2021

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

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This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should "do something" about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes ...


Some Objections To Strict Liability For Constitutional Torts, Michael Wells Apr 2021

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

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Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers ...


On Command, Diane Marie Amann Apr 2021

On Command, Diane Marie Amann

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By reference to the Lieber Code and other sources, this essay emphasizes the history of responsibility underlying the doctrine of command responsibility, and further criticizes developments that seem to have intermingled that doctrine with what are called “modes of liability. The essay urges that consideration of commander responsibility stand apart from other such “modes,” and cautions against a jurisprudence that raises the risk that, before fora like the International Criminal Court, no one can be held to account. It appears in a symposium issue exploring a 2020 Cambridge University Press book by Darryl Robinson, Justice in Extreme Cases: Criminal Law ...


Prosecuting Executive Branch Wrongdoing, Julian A. Cook Apr 2021

Prosecuting Executive Branch Wrongdoing, Julian A. Cook

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Attorney General William Barr's handling of Robert Mueller's Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr's conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires ...


Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Gregg Polsky, Brian Galle, Andrew Lund Jan 2021

Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Gregg Polsky, Brian Galle, Andrew Lund

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As part of the most sweeping federal tax reform in a generation, the Tax Cuts and Jobs Act (“TCJA”) radically altered the tax treatment of compensation paid to senior executives of public companies. Prior to the TCJA, payment of such compensation in excess of one million dollars was non-deductible except to the extent the compensation was performance-based. The TCJA eliminated the exception so that all senior executive compensation above one million dollars is now non-deductible regardless of whether it is performance-based or not.

This reform provides a natural experiment to study the role of tax law in influencing managerial pay ...


Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii Jan 2021

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

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Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin ...


Interpretive Entrepreneurs, Melissa J. Durkee Jan 2021

Interpretive Entrepreneurs, Melissa J. Durkee

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Private actors interpret legal norms, a phenomenon I call "interpretive entrepreneurship." The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of "post hoc" international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial ...


Digital Gatekeepers, Thomas E. Kadri Jan 2021

Digital Gatekeepers, Thomas E. Kadri

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If in William Blackstone's time we might have thought of a person's home as their castle, in Mark Zuckerberg's time we might say that their website is too. Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers--as property owners that may permit and restrict access to websites much like landowners may do with private land in the real world. If platforms withhold their consent through words or inference, cyber-trespass laws let them enforce their preferences about who may access their services and gather information from the internet. Concerned ...


Taxing Buybacks, Gregg Polsky, Daniel J. Hemel Jan 2021

Taxing Buybacks, Gregg Polsky, Daniel J. Hemel

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A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities-law changes to deter repurchases, with only passing mention of potential tax-law solutions. This Article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that ...


Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Ddt, “Ecologists,” Regulations, And Renewable Energy, Adam D. Orford Jan 2021

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Ddt, “Ecologists,” Regulations, And Renewable Energy, Adam D. Orford

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Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational ...


Are We (Americans) All International Realists Now?, Harlan G. Cohen Jan 2021

Are We (Americans) All International Realists Now?, Harlan G. Cohen

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Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean ...


How The State And Federal Tax Systems Operate To Deny Educational Opportunities To Minorities And Other Lower Income Students, Camilla E. Watson Jan 2021

How The State And Federal Tax Systems Operate To Deny Educational Opportunities To Minorities And Other Lower Income Students, Camilla E. Watson

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The importance of education cannot be overstated. Education is a core principle of the American Dream, and as such, it is the ticket to a better paying job, homeownership, financial security, and a better way of life. Education is the key factor in reducing poverty and inequality and promoting sustained national economic growth. But while the U.S. Supreme Court has referred to education as "perhaps the most important function of the state and local governments," it has nevertheless stopped short of declaring education a fundamental right guaranteed under the Constitution. As a consequence, because education is not considered a ...


Transatlantic Divisions In Methods Of Inquiry About Law: What It Means For International Law, John Linarelli Jan 2021

Transatlantic Divisions In Methods Of Inquiry About Law: What It Means For International Law, John Linarelli

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It is based on a presentation at a workshop at the University of Leicester on “The Neglected Methodologies of International Law: Empirical, Socio-Legal and Comparative,” on January 31, 2018. The chapter explores a question that many have voiced but which is difficult to answer: why do differences persist in approaches to research and scholarship about international law, as between the United States and Europe, and even within the Anglo-American tradition as between British and American traditions? There are likely many reasons and this is not a study of “causes.” It is an exercise in interpretation. It locates the differences in ...


Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller Jan 2021

Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller

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The #MeToo Movement has ushered sexual harassment out of the shadows and thrown a spotlight on the gender pay gap in the workplace. Harassment and unfair treatment have, however, been difficult to extinguish. This has been true for all workers, including partners – those women who are owners in their firms and claim that they have suffered harassment or unfair treatment based on gender. That is because a partner’s lawsuit for discrimination often will suffer an insurmountable hurdle: plaintiff’s status as a partner in the firm means that they may not be considered an “employee” under the relevant employment ...


Equality And Access To Credit: A Social Contract Framework, John Linarelli Jan 2021

Equality And Access To Credit: A Social Contract Framework, John Linarelli

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The problems governments face in regulating consumer finance fall into two categories: normative and cognitive. The normative problems have to do with the way that some governments, particularly those adhering to an American model of household finance, have financed social mobility and intergenerational welfare through debt, a tenuous and socially risky policy choice. Credit has a substantial social aspect to it in the United States, where the federal government has in some way engaged in subsidizing about 1/3 of consumer credit, particularly in the residential mortgage market, feeding into a substantial capital markets dimension through government-guaranteed securitization. Most Americans ...


The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum Jan 2021

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

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This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way ...


Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan Jan 2021

Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan

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Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet in a ...


The Legal Industry's Second Chance To Get It Right, Nancy B. Rapoport, Joseph R. Tiano Jr. Jan 2021

The Legal Industry's Second Chance To Get It Right, Nancy B. Rapoport, Joseph R. Tiano Jr.

Scholarly Works

No abstract provided.


The Rhetoric Of Racism In The United States Supreme Court, Kathryn M. Stanchi Jan 2021

The Rhetoric Of Racism In The United States Supreme Court, Kathryn M. Stanchi

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This Article is the first study that categorizes and analyzes all the references to the terms "racist," "racism," and "white supremacy" throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court's rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme ...


Talking Back In Court, M. Eve Hanan Jan 2021

Talking Back In Court, M. Eve Hanan

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No abstract provided.


Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel Jan 2021

Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel

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The COVID-19 pandemic created not only a public health crisis but also an insurance coverage imbroglio, prompting near-immediate business interruption claims by policyholders impacted by government restrictions ordered in response to the pandemic. Insurers and their representatives "presponded" to the looming coverage claims by quickly moving to denigrate arguments for coverage, engaging in a pre-emptive strike that has largely worked to date, inducing too many courts to rush to judgment by declaring-as a matter of law-that policy terms such as "direct physical loss or damage" do not even arguably encompass the business shutdowns resulting from COVID-19. Our closer examination of ...


The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure Jan 2021

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable ...


Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel Jan 2021

Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

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ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute's work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.

The vehemence of insurer opposition ...


"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus Jan 2021

"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus

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This Article focuses on uncovering the multiple meanings of the word "our" in the published opinions of the U.S. Supreme Court from Chisholm to modern times. To do so, we use a digital legal history approach, combining robust court data, text mining techniques, and expert word classification, using a set of custom open-source tools and open data.


Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport Jan 2021

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

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This essay discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills.


International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble Jan 2021

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

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This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision ...


High-Tech Dispute Resolution: Lessons From Psychology For A Post-Covid-19 Era, Jean R. Sternlight, Jennifer K. Robbennolt Jan 2021

High-Tech Dispute Resolution: Lessons From Psychology For A Post-Covid-19 Era, Jean R. Sternlight, Jennifer K. Robbennolt

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Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences ...


Evidentiary Policies Through Other Means: The Disparate Impact Of "Substantive Law" On The Distribution Of Errors Among Racial Groups, Gustavo Ribeiro Jan 2021

Evidentiary Policies Through Other Means: The Disparate Impact Of "Substantive Law" On The Distribution Of Errors Among Racial Groups, Gustavo Ribeiro

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This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.”

To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider ...


Justice As Message Symposium: What We See When We See Law … Through The Eyes Of Dame Laura Knight, Diane Marie Amann Dec 2020

Justice As Message Symposium: What We See When We See Law … Through The Eyes Of Dame Laura Knight, Diane Marie Amann

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The eye cannot help but be drawn to the cover of Justice as Message, the new analysis by Carsten Stahn of, to quote the subtitle, Expressivist Foundations of International Criminal Justice. On the high-gloss paper jacket we see a tableau of blacks and browns and olive drab, accented only by the purple of a lawyer’s robe and the teal of a dossier perched on the bar behind him. In front, we see that the bench is buried in paper – paper that turns to ashes as the back wall gives way to a vision of buildings in ruin and, in ...


Unravelling The Us Presidential Election, Lori A. Ringhand Nov 2020

Unravelling The Us Presidential Election, Lori A. Ringhand

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One of the most perplexing things about US elections is the extent to which we litigate what in much of the rest of the world are routine nuts and bolts questions about how elections work. I had first-hand experience with this during the 2000 presidential election when I was living in the UK. Why, I constantly was asked, is the US Supreme Court deciding your presidential election?

It’s a good question, and also a timely one given how the current presidential election is unfolding.