Law Commons^™

The Keys To The Kingdom: Judges, Pre-Hearing Procedure, And Access To Justice, Colleen F. Shanahan

Faculty Scholarship

Judges see themselves as – and many reforming voices urge them to be – facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges …

The Challenge Of The New Preemption, Richard Briffault

Faculty Scholarship

The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including among others firearms, workplace conditions, sanctuary cities, antidiscrimination laws, and environmental and public health regulation. Particularly striking are punitive measures that do not just preempt local measures but also hit local officials or governments with criminal or civil fines, state aid cutoffs, or liability for damages, as well as broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption …

Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard

Faculty Scholarship

At least 21 million people globally are victims of human trafficking, typically involving either sexual exploitation or forced labor. This form of modern-day slavery tends to increase after natural disasters or conflicts where large numbers of people are displaced from their homes and become highly vulnerable. In the decades to come, climate change will very likely lead to a large increase in the number of people who are displaced and thus vulnerable to trafficking. The Paris Climate Agreement of 2015 established objectives to limit global temperature increases, but the voluntary pledges made by nearly every country fall far short of …

The Origins Of A Capital Market Union In The United States, Jeffrey N. Gordon, Kathryn Judge

Faculty Scholarship

EU policy-makers have focused on the creation of a “Capital Market Union” to advance the economic vitality of the EU in the aftermath of the Global Financial Crisis of 2007-09 and the Eurozone crisis of 2011-13. The hope is that EU-wide capital markets will help remedy the limitations in the EU’s pattern of bank-centered finance, which, despite the launch of the Banking Union, remains tied to Member States. Capital market development will provide alternative channels for finance, which will facilitate greater resiliency, more economic integration within the EU, and more choices for savers and firms. This chapter uses the origins …

Appraisal Arbitrage And Shareholder Value, Scott Callahan, Darius Palia, Eric L. Talley

Faculty Scholarship

Post-merger appraisal rights have been the focus of heated controversy within mergers and acquisitions circles in recent years. Traditionally perceived as an arcane and cabalistic proceeding, the appraisal action has recently come to occupy center stage through the ascendancy of appraisal arbitrage — whereby investors purchase target-company shares shortly after an announcement principally to pursue appraisal. Such strategies became more feasible and profitable a decade ago, on the heels of two seemingly technocratic reforms in Delaware: (i) the statutory codification of pre-judgment interest, pegging a presumptive rate at five percent above the federal discount rate; and (ii) the Transkaryotic opinion, …

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Promoting International Cybersecurity Cooperation: Lessons From The Proliferation Security Initiative, Duncan B. Hollis, Matthew C. Waxman

Faculty Scholarship

Global efforts by states to cooperate through international rules in combating cyber threats have generated mixed results, at best. In this paper, we examine the architecture of the Proliferation Security Initiative (PSI) as a possible model for future cybersecurity cooperation among interested states. We identify several features of PSI’s architecture (rather than its substantive focus on non-proliferation) for further analysis, including PSI’s low entry costs, tiered structure, and flexibility, as well as its leveraging of both territorial jurisdiction and state consent. We conclude that, despite several hurdles visible in the scope of its membership and its legal framework, PSI still …

Is The First Amendment Obsolete?, Tim Wu

Faculty Scholarship

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce – rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on …

The Democratic Deficit, Joseph Raz

Faculty Scholarship

Why democracy? Institutions of government and others must meet conditions of legitimacy. Why? and what are they? what are principles of legitimacy, like the principle of subsidiarity? and how does democracy fit in a theory of legitimacy? The paper surveys what it takes to be the seven most important advantages of democratic government: civil and political rights, more extensive opportunities for people to engage in public affairs, responsiveness to the expressed preferences of the people, stability, peaceful transfer of power, loyalty and solidarity. It then considers the role of legitimation in securing these advantages. These reflection lead to the question …

Remedies In The Ucc: Some Critical Thoughts, Victor P. Goldberg

Faculty Scholarship

I thank the conference organizers and the law review for giving me the opportunity to vent some of my frustrations with the Uniform Commercial Code (UCC). I have expressed my concerns with the Code’s overreliance on “custom and usage” elsewhere, and will not pursue that further here. Nor will I bemoan the Code’s invocation of good faith to undo the parties’ balancing of flexibility and reliance. I will confine my discussion to contract remedies. But I have to begin by noting one section I simply do not understand. Why on earth would the Code drafters in § 2–718(2)(b) have required …

What's So Great About The Declare War Clause?, Matthew C. Waxman

Faculty Scholarship

I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause – and especially Madison’s statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today, especially by …

Adrenaline Of Excellence: The Career Of Judge Gerald Bruce Lee, Claudio Grossman, Andrew Popper

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Law's Own Virtue, Joseph Raz

Faculty Scholarship

The paper offers a new account of the rule of law, revising my previous view, and criticising some alternatives. It focuses on the rule of law's aim to avoid arbitrary government, and on its relation to the essential functions of government. The rule of law requires that government action will manifest an intention to protect and advance the interests of the governed. As such it is almost a necessary condition for the law's ability to meet other moral demands, and it facilitate coordination and cooperation internally and internationally.

Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim

Faculty Scholarship

The Appellate Body (AB) of the WTO has issued over 140 reports but only eight separate opinions, four of which are genuinely dissenting. Such paucity, in fact, is the WTO’s implicit tradition inherited from GATT of prioritizing unanimous decisions, hoping they solidify the institution’s legitimacy and countries’ confidence in the system. But at the more individual level, an AB member’s decision to dissent is driven by multiple factors that have implications for the institution’s jurisprudence. First, the factors explain how the symbiotic relationship between an AB member and his or her nominating country – whose interests turn out to be …

The “Protection Of The Competitive Process” Standard, Tim Wu

Faculty Scholarship

The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”

After Consumer Welfare, Now What? The "Protection Of Competition" Standard In Practice, Tim Wu

Faculty Scholarship

The consumer welfare standard in antitrust has been heavily criticized. But would, in fact, abandoning the “consumer welfare” standard make the antitrust law too unworkable and indeterminate?

I argue that there is such a thing as a post-consumer welfare antitrust that is practicable and arguably as predictable as the consumer welfare standard. In practice, the consumer welfare standard has not set a high bar. The leading alternative standard, the “protection of competition” is at least as predictable, and arguably more determinate than the exceeding abstract abstract consumer welfare test, while being much truer the legislative intent underlying the antitrust laws. …

Charitable Subsidies And Nonprofit Governance: Comparing The Charitable Deduction With The Exemption For Endowment Income, David M. Schizer

Faculty Scholarship

Charitable subsidies are supposed to encourage positive externalities from charity. In principle, the government can pursue this goal by evaluating specific charitable initiatives and deciding how much each should receive. Although the government sometimes makes this sort of fine-grained judgment, this Article focuses on two income tax rules that leave the government essentially no discretion about which charities to fund: the deduction for donations to charity ("the deduction") and the exemption of a charity's investment income ("the exemption"). With each subsidy, federal dollars flow automatically as long as charities satisfy very general criteria.

As a result, these subsidies are especially …

Preemption And Commandeering Without Congress, Jessica Bulman-Pozen

Faculty Scholarship

In a time of polarization, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples.

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to 15 …

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we …

Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team

Faculty Scholarship

The CarbonSAFE Cascadia project team is conducting a pre-feasibility study to evaluate technical and nontechnical aspects of collecting and storing 50 MMT of CO2 in a safe, ocean basalt reservoir offshore from Washington State and British Columbia. Sub-seafloor basalts are very common on Earth and enable CO2 mineralization as a long-term storage mechanism, permanently sequestering the carbon in solid rock form. Our project goals include the evaluation of this reservoir as an industrial-scale CO2 storage complex, developing potential source/transport scenarios, conducting laboratory and modeling studies to determine the potential capacity of the reservoir, and completing an assessment of economic, regulatory …

Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard

Faculty Scholarship

The worst heatwave in modern history occurred in Russia in 2010; its rare combination of extreme temperatures and long duration killed an estimated 55,000 people. Under an RCP 8.5 scenario, comparable heat waves could occur every two years in the eastern United States by the end of the century, and by then in Europe, the legendary heat wave of 2003 “would be classed as an anomalously cold summer relative to the new climate.” These increased temperatures and heat waves are not just occurring randomly. The science is clear that human activities – mostly greenhouse gas emissions and deforestation – are …

The Middleman’S Damages Revisited, Victor P. Goldberg

Faculty Scholarship

If A promises to sell to B who, in turn, promises to sell to C and either A or C breaches should B receive the gain it expected had both transactions occurred (lost profits) or the larger market/contract differential? Recent case law and commentary argues for the lost profit remedy. The argument is that there is a conflict between awarding market damages and making the nonbreacher whole. This paper argues that there is no conflict. If B were a broker, and C breached, then A would have an action against C for market damages. If B were party to the …

The Lost Volume Seller In English Law, Victor P. Goldberg

Faculty Scholarship

If a buyer breaches a contract but the market price has remained unchanged, English courts and the treatises have treated the seller as a “lost volume seller.” The seller, it is argued, could have had two sales, not one, so it lost the profit on the second sale. This paper recognizes that the buyer has an option to terminate and that the contract prices that option. The implicit option price of the lost volume remedy results in an absurd contract, setting the option price high when it should be low and vice versa. The default rule ought to be the …

Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract.

Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add?

Our task in Part I of this …

The Economic Justice Imperative For Lawyers In Trump Country, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This article serves as a call to action for rural law schools to meaningfully incorporate economic justice into transactional legal education, and in doing so, train much needed rural advocates, legal experts, and local leaders. Rural areas are continuously portrayed as “Trump Country” in today’s mainstream media coverage, which largely focuses on socio-cultural differences between urban and rural areas. Many rural scholars and activists are troubled by the “Trump Country” label as it masks the structural poverty issues that lead to housing insecurity, water insecurity, poor public health indicators, unemployment, underemployment, troubled public education systems, and environmental degradation impacting both …

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Sean Flynn, Srividhya Ragavan, Brook Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Ethics And The History Of Social Movement Lawyering, Susan Carle

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Reflection On The Ethics Of Movement Lawyering, Susan Carle, Scott L. Cummings

Scholarly Articles in Law Reviews & Journals

This essay takes a new look at legal ethics issues salient to "movement lawyers" who maintain a sustained commitment to social movement goals and collaborate with social movement organizations over time to achieve them. The essay provides a historical overview of movement lawyering, tracing its development to current practice in which movement lawyers work in collaboration with mobilized social movement groups, though not always in traditional lawyer-client relationships. As this analysis reveals, contemporary movements employ a sophisticated array of strategies, which may pull lawyers away from traditional representation paradigms. We argue that the legal ethics literature on movement lawyering must …