Law Commons^™

Legality In Contemporary Chinese Politics, Taisu Zhang, Tom Ginsburg

Public Law and Legal Theory Working Papers

The picture of Chinese law that many Western scholars and commentators portray is an increasingly bleak one: since the mid-2000s, China has been retreating from legal reform back into unchecked authoritarianism. This article argues that, much to the contrary, Chinese politics have in fact become substantially more law-oriented over the past five years. The Chinese Communist Party under Xi Jinping has indeed centralized power and control to an almost unprecedented extent, but it has done this in a highly legalistic way, empowering courts against other state and Party entities, insisting on legal professionalism, and bringing political powers that were formerly …

How War Makes (And Unmakes) The Democratic State: Reading The Reluctant Fundamentalist And Exit West In A Populism Age, Aziz Z. Huq

Public Law and Legal Theory Working Papers

War makes the state, and war makes the state democratic—or so the conventional wisdom holds. But the wars of the twenty-first century will have a distinct complexion from wars of the century just passed. As war and democracy alike change, their relationship alters. This book chapter examines that relationship through the lens of two recent novels by Mohsin Hamid, The Reluctant Fundamentalist and Exit West. The protagonists of these novels stand in some fashion for the two main vectors by which war is perceived to, and indeed does, work a change to the democratic state—the terrorist and the migrant. The …

A Regulatory Classification Of Digital Assets: Toward An Operational Howey Test For Cryptocurrencies, Icos, And Other Digital Assets, M. Todd Henderson

Public Law and Legal Theory Working Papers

Digital assets are hot right now. Whether cryptocurrencies, like bitcoin, or initial coin offerings and tokens, this new asset class has captured the imagination of American investors. While it remains to be seen if this phenomenon has staying power, there is no doubt that these assets and their promoters have attracted the attention of the Securities and Exchange Commission. But neither Congress nor the SEC has formally elucidated which digital assets are securities and which are not.

This Article seeks to provide clarity in determining which digital assets are securities. It proposes two tests that operationalize the Supreme Court’s test …

New Light On The Trial Of Billy Budd, Richard H. Mcadams, Jacob Corre

Public Law and Legal Theory Working Papers

Few American literary works have been the subject of as much academic commentary as has Billy Budd, Herman Melville’s unfinished final novel.¹ Possibly no American novel has garnered more attention from those interested in the roles that law plays in understanding literature. To summarize what some regard as a novel immune to summary: Billy Budd is a guileless and winsome impressed crewman on board an English man o’ war in 1797. England is at war, and recent mutinies fill the navy with anxiety. Budd is prone to bouts of severe stuttering. John Claggart, the ship’s master-at-arms, brings a malicious …

A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett

Public Law and Legal Theory Working Papers

Law has always strived for accurate contextualization, but only with recent technological advances in data processing and communication has this goal become meaningfully achievable at the personal level. While the other essays in this Symposium explore the costs and benefits of personalizing particular areas of law, we present a general framework for thinking about the new personalization of law. We identify two fundamental questions that every personalization project must address: First, how do lawmakers set the objective of a personalized law? Second, how is the content of a personalized law communicated to the citizens who must follow it? We explore …

The Living Anti-Injunction Act, Daniel J. Hemel

Public Law and Legal Theory Working Papers

In the coming months, the Internal Revenue Service is likely to issue a slew of new regulations interpreting the December 2017 federal tax reform legislation. These regulations are likely to define the scope of the new deduction for pass-through entities; determine the reach of the new base erosion tax on multinational enterprises; fill in the details of the new “opportunity zone” program aimed at encouraging investment in low-income communities; and address a wide range of other important matters.¹ Inevitably, some taxpayers will object to these regulations and will seek to challenge the new rules in court. When, where, and …

The Supreme Court Of India: An Empirical Overview Of The Institution, Aparna Chandra, William H.J. Hubbard, Sital Kalantry

Public Law and Legal Theory Working Papers

The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet scholars and policy makers have a very uneven picture of the court’s functioning: deep knowledge about the more visible, “high-profile” cases but very little about more mundane, but far more numerous and potentially equally important, decisions. This chapter aims to address this imbalance with a rigorous, empirical account of the Court’s decisions from 2010 to 2015. We use the most extensive original dataset of Indian Supreme …

Racial Equity In Algorithmic Criminal Justice, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Algorithmic tools for predicting violence and criminality are being used more and more in policing, bail, and sentencing. Scholarly attention to date has focused on their procedural due process implications. My aim here is to consider these instruments’ interaction with the enduring racial legacies of the criminal justice system There are two competing lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It will often fail to capture the full range of racial issues that potentially arise in …