Law Commons^™

Major Questions' Quiet Crisis, Graham S. Steele

Faculty Publications

During the New Deal, President Franklin D. Roosevelt declared that the United States was facing a “quiet crisis.” The Supreme Court had struck down his administration’s rules governing the petroleum and poultry industries. Unlike the recent banking panic that had caused the Great Depression, there were “no lines of depositors outside closed banks.” The situation, Roosevelt said, would nonetheless be “far-reaching in its possibilities of injury to America.” The courts ultimately relented, leaving the remainder of the New Deal regulatory settlement largely intact.

Today, the United States confronts another “quiet crisis.” The U.S. banking system has experienced a decade and …

Duties Owed To The Public, Nicolas Cornell

Book Chapters

How does private law conceptualize duties owed to the public-at-large? Are they owed to individual members of the public? This question is interstitial in two ways—it concerns both the space between public law and private law and the spaces between different fields of private law. Different areas of private law handle it in contradictory ways. Duties of public officials are regarded as owed to individual citizens for the purposes of contract law’s preexisting duty rule but as not owed to individuals as a matter of tort law’s public duty rule. Violations of public property might be enforceable through public nuisance, …

De Minimis Non Curat Lex?: Law And Little Things, William Ian Miller

Book Chapters

We are all familiar with the maxim de minimis non curat lex. It is not true at all; a good portion of law is concerned with nothing if not little things. Yes, there are often jurisdictional amounts that purport to deny jurisdiction to disputes too trivial for the courts to get moving. But sometimes these amounts are so minimal that it falsifies the maxim, a maxim which is not classical, apparently being a late medieval modification of de minimis non curat praeter.<.p>

Erasing Section 2?, Ellen D. Katz

Book Chapters

This chapter traces the evolution of Section 2 of the Voting Rights Act since 1982. It shows how Section 2 displaced scores of electoral structures that inhibited minority political participation; how, in so doing, it fostered the proliferation of majority-minority electoral districts nationwide; how judicial distaste for these districts fueled sweeping decisions that dramatically narrowed Section 2’s reach; and how the Court’s recent decision in Allen v. Milligan has, for now, curbed that retrenchment. The chapter also describes recently articulated limits the Supreme Court has placed on Section 2 vote denial—as distinct from dilution—claims; and the way in which Section …

Banking And Antitrust, Saule T. Omarova, Graham S. Steele

Faculty Publications

Money is power. Banks have the extraordinary power to create the nation’s money and credit, which they are entrusted to channel into productive economic uses. Like most other forms of economic power, this publicly granted privilege can be abused for private gain. That is why the “money monopoly” and “money trusts” were once considered one of the most dangerous forms of concentrated private wealth, an existential threat to economic freedom and American democracy. Yet, for the past half-century, the law governing banks and the law curbing monopolies have occupied doctrinally and normatively separate spaces. Today, banking law is seen predominantly …

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

Faculty Publications

This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective …

Legal Gender Recognition In Nepal And Comparative Context, Holning S. Lau, Mara Malagodi

Faculty Publications

The Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” rather than medical or other criteria; at the time, no other national apex court or government had so clearly prioritized self-determination for gender identity. Pant, however, centered “third gender” persons (neither male nor female), and now the Court is considering the case of a transgender woman, Ms. Kapali, who seeks to be identified as female on her documents and is challenging authorities that rejected her requests. …

A Bayesian Analysis Of E-Cigarette Risk Perceptions In The United Kingdom, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Public Health England has communicated that e-cigarettes provide at least a 95% risk reduction compared to conventional cigarettes. This article's survey evidence indicates that adults in the United Kingdom believe that e-cigarettes are only 30%–40% safer overall and that they reduce lung cancer risks and total mortality risks by a similar percentage. A Bayesian analysis of risk beliefs finds that e-cigarette risk perceptions are anchored on prior cigarette risk beliefs. The public, especially smokers, underestimates the magnitude of the risk reduction being communicated by public health officials. Those who are aware of e-cigarette messages from Public Health England assess lower …

Lower Courts After Loper Bright, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

If Loper Bright Enterprises v. Raimondo overrules or ousts Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., its “consequences will be enormous, and almost uniformly bad.” The decision will instantly destabilize federal law across all sectors of the national economy. It also will undo another longstanding precedent and reinforce the public’s negative perception of the Court. These effects are certain, and they are reason enough not to dislodge a bedrock principle. Less certain are Loper Bright’s precise effects on judicial deference and agency authority. Those effects depend on the new rule that emerges, as to which Court-watchers …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolution, Joni Hersch, Blair D. Bullock

Vanderbilt Law School Faculty Publications

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop “secret settlements” by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

Exacting Assessments: Sheetz And The Problem Of Stategraft, Christopher Serkin

Vanderbilt Law School Faculty Publications

In the spring of 2024, the United States Supreme Court decided Sheetz v. County of El Dorado. The case resolved a long-standing question: whether the constitutional rules applying to ad hoc development exactions also apply to legislated exactions. They do. It is an important case, and one that may reconfigure the financing of municipal infrastructure. This Essay examines the case through the lens of Professor Bernadette Atuahene's concept of "stategraft," or the government illegally using its regulatory power to raise money from the poor and politically powerless. This Essay compares legislative exactions to other forms of municipal finance like special …

Thoughts On Corporate Law And The Problem Of Human Capital, Margaret Blair

Vanderbilt Law School Faculty Publications

The theme of this Symposium takes me back more than thirty years to work I did on corporations and human capital at the Brookings Institution in the 1990s. Although I have been on the faculty of law schools since 2000, I am not a lawyer, and in fact, never went to law school. I did my Ph.D. in economics, and I wrote my dissertation on merger waves-in particular, I developed a macroeconomic theory to explain the wave of corporate mergers and takeo- vers that happened in the 1980s. The most prominent and popular idea about takeovers at the time was …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Promoting And Reforming Kenya’S Customary Justice Systems In Criminal Cases, Daniel S. Mcconkie Jr.

Emory International Law Review

Kenya’s indigenous customary justice systems developed over time to administer African justice rooted in local community harmony. British Colonialists imposed a foreign legal system, and Kenya formally retained that system even after gaining independence in 1963. Nevertheless, ordinary Kenyans today continue to resort to customary justice systems for their legal problems, including many crimes. The 2010 Constitution requires the judiciary to promote customary justice systems because they are trustworthy and accessible. Paradoxically, though, the Constitution also forbids these customary justice systems from contravening other constitutional provisions. Therein lies the difficulty. Customary justice systems’ procedures do not always comport with …

The Quest For Funding Under The Dutch Wamca: Third Party Funding And The Viability Of A Procedural Fund, Xandra Kramer

Emory International Law Review

A new chapter started for collective actions with the 2020 Dutch Mass Damage Settlement in Collective Actions Act (WAMCA) and the E.U. Directive on representative actions for consumer cases. The expansion of the class action mechanism has not only raised procedural and practical questions but has also triggered debates on the funding of inherently expensive collective claims for damages. Absent appropriate public legal aid schemes, third-party litigation funding has been on the rise and commercial funding has become one of the most discussed and controversial topics in European civil justice. Developments in collective actions and funding have prompted the Dutch …

The Digitalization Of Litigation, Manuel A. Gómez

Emory International Law Review

The development of digital tools that enhance communications, security and decision making have caught the attention of international development agencies, national governments, civil society organizations, and the private sector. The United Nations Development Programme (UNDP) has highlighted the importance of digital tools as a means “to improve justice sector efficiency, transparency and access to justice[,]” while the European Commission has aligned them with “a new push for European democracy in line with the political priority of a Europe fit for the digital age[.]” With these observations in mind, this article focuses on the unique advantages and challenges presented by the …

From Uniforms To Robes: Unveiling Judicial Review Practices Of The Supreme Court Of Israel In Cases Adjudicated In Military Tribunals, Yotam Berger

Emory International Law Review

While the Supreme Court of Israel has been, historically, perceived to be inclined to intervene in national security matters, this Article reveals a notable restraint in its review of criminal cases originating in military-operated tribunals. These tribunals include courts-martial (CMs), where soldiers are prosecuted, and occupied territory courts (OTCs), where Palestinians face charges. The study examines a database designed to encompass all available relevant cases decided by the Supreme Court of Israel from 2002 to 2021. It concludes that, despite its interventionist reputation, the Court exhibits a restricted, perhaps conservative stance toward criminal cases previously adjudicated by military judges. Notably, …

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

Journal Articles

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared …

A New Day For Environmental Justice At The U.S. Epa, Clifford Villa

Faculty Scholarship

September 24, 2022, was a big day in the history of the EPA. On this day, EPA Administrator Michael Regan signed an order creating a new Office of Environmental Justice and External Civil Rights (“OEJECR”) within the EPA. We’re very excited about our new office of environmental justice at the EPA. However, the EPA takes environmental justice seriously across all the offices, including my own Office of Land and Emergency Management (“OLEM”).

In this lecture, we will begin with some early history of environmental justice, how we realized the existence of environmental injustice in the first place. Then we’ll talk …

Standing In The Way Of Environmental Justice, Lauren Cormany

Utah Law Review

Private citizens need an avenue for justice through the judicial system on the siting of hazardous facilities. The health impacts of exposure to toxic facilities—like cancer, respiratory illnesses, and birth defects—are severe and victims deserve their day in court. While initiatives by government agencies and grassroots organizations provide influential roads to improvement, the judiciary stands to only bolster the efficacy of the work in the environmental justice field. The most effective way to include the courts is through the legislature creating a cause of action targeting the issues that communities face. Solutions to the issue of citizen standing in challenging …

Old And New Environmental Racism, Tseming Yang

Utah Law Review

Over the past five decades, the U.S. Environmental Protection Agency (“EPA”) moved from purposeful disregard of environmental racism to a public embrace of environmental justice as an organizational priority. Unfortunately, its efforts to address environmental discrimination remain a work-in-progress. This Article posits that the Agency’s core difficulties have arisen out of its reluctance to accept the continuing salience of race and the substantive implications for its regulatory work. It has blinded the Agency to the evolving manifestations of environmental discrimination and associated harms. The effect has been to impede the aggressive enforcement of antidiscrimination laws, particularly the discriminatory effects regulations …

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Free Speech Is Incomplete? Big Tech In A Distant Mirror, Jan Polański

Yearbook of Antitrust and Regulatory Studies

In 1961, Alexander Meiklejohn claimed that the First Amendment, the US provision guaranteeing free speech, is an absolute. Echoing this in the context of the rise of fake news, Tim Wu has recently asked whether the First Amendment might have become obsolete. Yet, with the growing power of Big Tech, concerns are also voiced that their impact on free speech may go too far. However, there is tension here: on the one hand, the unprecedented role of Big Tech provides incentives for regulation; on the other, free speech is such a sensitive subject that there are reasons for limiting government …

Public Value And The Compatibility Of State Aid To Public Service Broadcasters – The Hot Potato For The European Commission, Dionysios Pelekis, Małgorzata Kozak

Yearbook of Antitrust and Regulatory Studies

This article explores the legal regime governing Public Service Broadcasters (PSBs), and the competences of the EU in regulating and overseeing them, from the perspective of State aid law and their compatibility with the internal market. First, the components of the legal framework are identified and analysed. Additionally, a substantive public value test is proposed and introduced, building on the available literature, decisional practice, and incorporating a legal construction of pluralism, derived from the available case law. Subsequently, the compatibility regime for PSBs is examined. The specific regime applicable to PSBs, and its constituent elements, are analysed, followed by an …

Elements Of The Criminal Mind, Kelsie A. Esposito Ms.

Honors Undergraduate Theses

Studying human behavior and societal dynamics has captivated scholars across time. From ancient philosophers like Plato to contemporary researchers, the quest to comprehend our distinctiveness and the mechanisms that enable harmonious coexistence remains paramount. This thesis examines the enigmatic realm of the “criminal class,” looking at their identity and actions and the cognitive processes underpinning their behavior. Focusing on violent criminal offenders, this thesis seeks to provide greater meaning and understanding of the criminal mind.

A Tale Of Two Sams: Effective Altruism’S Threat To The Security Of Emerging Technology, Mackenzie Young

SMU Science and Technology Law Review

Since the onset of scientific innovation, the character and charisma of the inventors and scientists behind emerging technologies have been a centerpiece of focus. However, in light of the driving forces behind innovation—especially the global need to “get ahead” of competitors—few are willing to inquire into the sincerity of held belief. From the ouster of Sam Altman as CEO of OpenAI to the criminal conviction of cryptocurrency mogul Sam Bankman-Fried, the philosophy of “effective altruism” has taken over the minds, hearts, and pocketbooks of Silicon Valley.

This Comment evaluates the origins of the Effective Altruism movement and argues that its …

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

Publications

No abstract provided.

The Minerals Challenge For Renewable Energy, Mark Squillace

Publications

One potential obstacle to a successful energy transition involves the critical minerals used in production of photovoltaic solar panels, wind turbines, electric vehicles, and batteries. A substantial portion of these will have to come from new and expanded mining operations around the world. But mining is controversial, in part due to the past failures of operators to protect communities and the environment. This Article considers how nations can responsibly identify, source, and process these minerals, and then deploy them in renewable energy products. Its scope is global, but U.S. laws and policies take center stage with a nod to the …

Consider Buffalo, Pierre Schlag

Publications

No abstract provided.

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …