Law Commons^™

Fair And Impartial Adjudication, Thomas W. Merrill

Faculty Scholarship

Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.

A dispute arising under …

Choice Of Law In Takings Cases, Thomas W. Merrill

Faculty Scholarship

This Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. It argues that there are three choices: federal constitutional law, state law, or a federal-patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The article illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a …

Exemplary Legal Writing 2018: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

In an age of mass incarceration, it is not so easy to find good in the U.S. criminal justice system. But The Secret Barrister makes you appreciate the better aspects of our system by showing just how dysfunctional the corresponding English system has become. The book — written by an anonymous junior barrister — is a devastating, sometimes hilarious, and frequently heart-breaking account of how the criminal justice system in England and Wales is not only broke financially but broken in its ability to deliver justice, whether to prosecutors, defendants, victims, or the public.

European Union Law And International Arbitration At A Crossroads, George A. Bermann

Faculty Scholarship

It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the "fragmentation" of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually "collide." By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. …

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

China As A "National Strategic Buyer": Toward A Multilateral Regime For Cross-Border M&A, Jeffrey N. Gordon, Curtis J. Milhaupt

Faculty Scholarship

Unlike the case of cross-border trade, there is no explicit international governance regime for cross-border M&A; rather, there is a shared understanding that publicly traded companies are generally for purchase by any bidder – domestic or foreign – willing to offer a sufficiently large premium over a target’s stock market price. The unspoken premise that undergirds the system is that the prospective buyer is motivated by private economic gain-seeking.

The entry of China into the global M&A market threatens the fundamental assumptions of the current permissive international regime. China has become a significant player in the cross-border M&A market, particularly …

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Faculty Scholarship

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

The Legitimacy Of Economic Sanctions As Countermeasures For Wrongful Acts, Lori Fisler Damrosch

Faculty Scholarship

This essay offers an installment of what would have been a continuing conversation with David D. Caron, a close colleague in the field of international law, on themes that engaged both of us across multiple phases of our intersecting careers. The issues are fundamental ones for both the theory and the practice of international law, involving such core concerns as how international law can be enforced in an international system that is not yet adequately equipped with institutions to determine the existence and consequences of violations or to impose sanctions against violators; and how to ensure that self-help enforcement measures …

The Trump Administration And Administrative Law, Peter L. Strauss

Faculty Scholarship

Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law

Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the …

Big Data And Discrimination, Talia B. Gillis, Jan L. Speiss

Faculty Scholarship

The ability to distinguish between people in setting the price of credit is often constrained by legal rules that aim to prevent discrimination. These legal requirements have developed focusing on human decision-making contexts, and so their effectiveness is challenged as pricing increasingly relies on intelligent algorithms that extract information from big data. In this Essay, we bring together existing legal requirements with the structure of machine-learning decision-making in order to identify tensions between old law and new methods and lay the ground for legal solutions. We argue that, while automated pricing rules provide increased transparency, their complexity also limits the …

On Posner On Copyright, Tim Wu

Faculty Scholarship

The judiciary are different than you and me, not just because they have life tenure, but because they spend years being petitioned by real people. A judge therefore does not face problems as a logistician or an academic does but instead faces a demand to do something for someone, based on events preceding. The resulting posture of decision tends to bring something out, something Justice Oliver Wendell Holmes once described as “the secret root from which the law draws all the juices of life.”

We can learn more about this “secret root” of the common law decision-making from Richard Posner’s …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

Faculty Scholarship

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

Annual Review Of Developments Under Seqra, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 46 cases under the State Environmental Quality Review Act (SEQRA) in 2018. However, the most important action under SEQRA was in the Legislature, followed by the state Department of Environmental Conservation (DEC).

New York’S New Congestion Pricing Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In the biggest change in local transportation policy in a generation, maybe two, “congestion pricing” will be instituted in Manhattan’s Central Business District in early 2021. It is the first action in decades that could actually lower traffic congestion, and that could provide a stable funding base for the capital program of the Metropolitan Transportation Authority (MTA). It also transfers considerable power from the Mayor to the Governor.

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 …

New York Environmental Legislation In 2018, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2018, New York State enacted a Drug Take Back Act in response to environmental and public health concerns about improper disposal of unused drugs. Another enactment gave the Department of Health (DOH) greater discretion in enforcement actions against landlords that do not take adequate action to abate lead paint. Other new laws tinkered with legislation enacted in 2017 to protect drinking water and to promote clean energy and energy storage. In addition, Governor Andrew M. Cuomo signed laws concerning farmland and pollinator protection. In New York City, a Styrofoam ban went into effect on Jan. 1 after courts rejected …

How Lawyers Can Help Save The Planet, Michael B. Gerrard, John C. Dernbach

Faculty Scholarship

Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse.

Explanation < Justification: Gdpr And The Perils Of Privacy, Talia B. Gillis, Josh Simons

Faculty Scholarship

The European Union’s General Data Protection Regulation (GDPR) is the most comprehensive legislation yet enacted to govern algorithmic decision-making. Its reception has been dominated by a debate about whether it contains an individual right to an explanation of algorithmic decision-making. We argue that this debate is misguided in both the concepts it invokes and in its broader vision of accountability in modern democracies. It is justification that should guide approaches to governing algorithmic decision-making, not simply explanation. The form of justification – who is justifying what to whom – should determine the appropriate form of explanation. This suggests a sharper …

Reconstituting The Future: An Equality Amendment, Catherine A. Mackinnon, Kimberlé W. Crenshaw

Faculty Scholarship

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

Liability Design For Autonomous Vehicles And Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, Xuan Di, Xu Chen, Eric L. Talley

Faculty Scholarship

Autonomous vehicles (AVs) are inevitably entering our lives with potential benefits for improved traffic safety, mobility, and accessibility. However, AVs’ benefits also introduce a serious potential challenge, in the form of complex interactions with human-driven vehicles (HVs). The emergence of AVs introduces uncertainty in the behavior of human actors and in the impact of the AV manufacturer on autonomous driving design. This paper thus aims to investigate how AVs affect road safety and to design socially optimal liability rules in comparative negligence for AVs and human drivers. A unified game is developed, including a Nash game between human drivers, a …

Corporate Governance For Sustainability, Andrew Johnston, Jeroen Veldman, Robert G. Eccles, Simon Deakin, Jerry Davis, Marie-Laure Djelic, Katharina Pistor, Blanche Segrestin, William M. Gentry, Cynthia A. Williams, David Millon, Paddy Ireland, Beate Sjåfjell, Christopher M. Bruner, Lorraine E. Talbot, Hugh Christopher Willmott, Charlotte Villiers, Carol Liao, Bertrand Valiorgue, Jason Glynos, Todd L. Sayre, Bronwen Morgan, Rick Wartzman, Prem Sikka, Filip Gregor, David Carroll Jacobs, Roger Gill, Roger Brown, Vincenzo Bavoso, Neil Lancastle, Julie Matthaei, Scott Taylor, Ulf Larsson-Olaison, Jay Cullen, Alan J. Dignam, Thomas Wuil Joo, Ciarán O'Kelly, Con Keating, Roman Tomasic, Simon Lilley, Kevin Tennent, Keith Robson, Willy Maley, Iris H-Y Chiu, Ewan Mcgaughey, Chris Rees, Nina Boeger, Adam Leaver, Marc T. Moore, Leen Paape, Alan D. Meyer, Marcello Palazzi, Nitasha Kaul, Juan Felipe Espinosa-Cristia, Timothy Kuhn, David J. Cooper, Susanne Soederberg, Andreas Jansson, Susan Watson, Ofer Sitbon, Joan Loughrey, David Collison, Maureen Mcculloch, Navajyoti Samanta, Daniel J.H. Greenwood, Grahame F. Thompson, Andrew R. Keay, Alessia Contu, Andreas Rühmkorf, Richard Hull, Irene-Marie Esser, Nihel Chabrak

Faculty Scholarship

The current model of corporate governance needs reform. There is mounting evidence that the practices of shareholder primacy drive company directors and executives to adopt the same short time horizon as financial markets. Pressure to meet the demands of the financial markets drives stock buybacks, excessive dividends and a failure to invest in productive capabilities. The result is a ‘tragedy of the horizon’, with corporations and their shareholders failing to consider environmental, social or even their own, long-term, economic sustainability.

With less than a decade left to address the threat of climate change, and with consensus emerging that businesses need …

Building A Good Jobs Economy, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

Conventional models are failing throughout the world. In the developed world, the welfare state-compensation model has been in retrenchment for some time, and the drawbacks of the neoliberal conception that has superseded it are increasingly evident. Yet there is no compelling alternative on offer. In the developing world, the conventional, tried-and-tested model of industrialization has run out of steam. In both sets of societies a combination of technological and economic forces (in particular, globalization) is creating or exacerbating productive/technological dualism, with a segment of advanced production in metropolitan areas that thrives on the uncertainty generated by the knowledge economy co-existing …

The Present Crisis In American Bail, Kellen R. Funk

Faculty Scholarship

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Faculty Scholarship

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American – in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor …

Is Korematsu Good Law?, Jamal Greene

Faculty Scholarship

In Trump v. Hawaii, the Supreme Court claimed to overrule its infamous Korematsu decision. This Essay argues that this claim is both empty and grotesque. It is empty because a decision to overrule a prior case is not meaningful unless it specifies which propositions the Court is disavowing. Korematsu stands for many propositions, not all of which are agreed upon, but the Hawaii Court underspecifies what it meant to overrule. The Court’s claim of overruling Korematsu is grotesque because its emptiness means to conceal its disturbing affinity with that case.

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Zoned Out: How Zoning Law Undermines Family Law’S Functional Turn, Kate Redburn

Faculty Scholarship

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that …

Please Tweet Responsibly: The Social And Professional Ethics Of Public Defenders Using Client Information In Social Media Advocacy, Nicole Smith Futrell

Faculty Scholarship

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide …