Law Commons^™

The Pregnant Workers Fairness Act: Evaluating Its Promise And Navigating Regulatory Challenges In A Post-Chevron Era, Rebecca B. Stein

City University of New York Law Review

The Pregnant Workers Fairness Act (“PWFA”) establishes the first federal standard to protect pregnant workers by explicitly granting them the right to reasonable workplace accommodations. Historically, pregnant workers have faced challenges in receiving the necessary accommodations due to limited legal protections, often forcing them to choose between income and health. Previous legislation, such as the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act, provided insufficient protection. This comment examines the PWFA’s potential impact, analyzing factors influencing its effectiveness and critiquing its limitations. It also explores recent state legal challenges to the PWFA in conjunction with the Supreme …

The Imperceptibility Of Muslim Identity, Nadia B. Ahmad

City University of New York Law Review

This article examines the challenges facing Muslim Americans, particularly Muslim women, as they confront systemic bias, intersectional oppression, and the racialization of religion in the United States. Through personal narrative and critical legal scholarship, it explores the pervasive nature of Islamophobia in political, academic, and societal spaces, highlighting its deep entrenchment in media and public policy. The author recounts a gendered Islamophobic attack during the 2024 Democratic National Committee’s Convention as an example of how prejudice and political intimidation intersect to marginalize Muslims. Using this experience as a foundation, the article critiques structural inequities reinforced through diversity, equity, and inclusion …

The New, New Colossus: An Annotated Version Of 'The New Colossus' By Emma Lazarus, Nora Phillips, Salimah Khoja

City University of New York Law Review

The purpose of this annotation is to raise awareness of the extreme restrictions in U.S. immigration law via a poetic outlet. It explores the juxtaposition of the promises of America with the reality under U.S. immigration laws. It delineates the various categories of “undesirables” that the United States aims to exclude and remove. Finally, it aims to begin to demystify U.S. immigration laws to show the extreme restrictions placed on immigrants.

Family Court Orders Of Ostensible "Protection": Silencing Survivors And Criminalizing Conduct In Civil Courtrooms, Talia Gallo

City University of New York Law Review

Survivors of intimate partner violence should not face further abuse at the hands of the state, let alone by a tool that is meant to protect them. This Note examines how orders of protections issued by family courts during child abuse and neglect proceedings fail survivors of violence and criminalize individuals in civil courtrooms. This research examines how orders of protection do not always afford individuals due process, despite depriving many of their individual autonomy and the right to parent. Orders of protection are just one example of how family courts punitively surveil marginalized communities, creating irreparable harm under the …

The Architecture Of U.S. Fascism: Part I, Nina Farnia

City University of New York Law Review

In this two-part series, I excavate the political, racial, and colonial economy of U.S. fascism. Part I presents definitions of both proto-fascism and fascism. I argue that fascism is attendant to the fall of imperialism, which is produced by intractable crises of capital. Thus, domination is not the defining feature of fascism, especially since fascism arrives to power through popular consent and emerges to enforce the empire’s last remaining frontiers of capital accumulation. I apply the analysis presented in Part I to modern legal documents, including Supreme Court decisions and executive orders. Legal historical methodology exposes rule of law liberalism …

Harmful Reports: How Federal Mandated Reporting Policy Entrenches Racism In Healthcare Delivery And Undermines Public Health, Kara Sheli Wallis

City University of New York Law Review

Since its inception, federal “child welfare” policy has focused on the regulation, surveillance, and policing of Black, Indigenous, and immigrant families. Rooted in the legacies of slavery, U.S. settler colonialism, and the nineteenth century child labor “Orphan Train” movement, modern foster care functions to “save” children by removing them from indigent families to be “placed out” with strangers that the government deems more deserving of support. Although this is done under the guise of “child safety,” the real threats to children’s well-being stem from systemic failures—such as unaffordable housing, lack of access to healthcare, and entrenched poverty. Rather than invest …

Evaluating The Evaluators: The Role Of Benchmarks In Legal Ai, Jonathan A. Franklin, Sean Harrington, Christine Hye Won Park

Other Faculty Publications

No abstract provided.

Medellín Manifesto On Transnational Value Chains And International Law, Diane Desierto

Journal Articles

Global Value Chains (GVCs) have been heralded as the ‘new world of trade’, yet they branch far beyond what has traditionally been considered ‘trade’—they interact with and are informed by multiple legal regimes often in ways unrelated to the theoretical and practical bases of those regimes. Building on the 2016 IGLP Manifesto, which sought to place law at the centre of GVC research, the Medellín Manifesto’s aspiration is to establish a research agenda that is specifically focused on international law: one that treats GVCs as amorphous and transnational legal creatures—they are transnational value chains (TVCs); one that recognises that the …

Precedent Terms, Vincent Buccola, David A. Hoffman

Coase-Sandor Institute for Law & Economics Research Paper Series

An implicit binary underlies most academic thinking about commercial and corporate contracts. To judge from the theory literature, such agreements consist of just two kinds of terms: those that are negotiated and priced and those that are boilerplate. But on-the-ground realities don’t square with the picture of contract production that the standard assumption yields. That picture can’t easily explain, for example, why sophisticated parties regularly spend large sums quarreling over terms, nor is it compatible with commonly expressed attitudes of negotiating triumph or dismay.

This Article develops a new analytical category that can explain these and other empirical regularities and …

Reorganization By Force, Jared I. Mayer

Coase-Sandor Institute for Law & Economics Research Paper Series

Nearly every chapter 11 is “voluntary” in that it’s initiated by the company’s managers. Yet the Bankruptcy Code also allows unsecured creditors to force a company to reorganize under an “involuntary chapter 11.” Involuntary chapter 11s are rare and largely ignored by scholars. That’s potentially because bankruptcy and corporate law largely defer to managers’ business judgment as to how to maximize the company’s value, and investors have several contract and corporate law tools designed to discipline underperforming managers. So, what work can involuntary chapter 11s do?

This Article shows that an involuntary chapter 11 can be the optimal solution for …

The Backstop Party, Vincent S.J. Buccola, Adi Marcovich Gross, Matthew R. Mcbrady

Coase-Sandor Institute for Law & Economics Research Paper Series

Bankruptcy exit financing has become a site of recurring conflict in the intra-class creditor skirmishes that now so often mark corporate reorganization. When creditors in an ad hoc group sufficiently large to accept a plan of reorganization on behalf of an impaired class agree to underwrite, or “backstop,” the debtor’s plan-contemplated capital raise, creditors who hold identical claims but are excluded from the backstop group cry foul that the Bankruptcy Code bars their unequal treatment. All-or-nothing arguments have proved unsatisfying, however, because, on the best reading of the Code, the merits depend on a matter of fact that is not …

A Companion Guide To The Restatement Of Consumer Contracts, Oren Bar-Gill, Omri Ben-Shahar, Florencia Marotta-Wurgler

Coase-Sandor Institute for Law & Economics Research Paper Series

This short Essay, written by the Reporters of the recently published Restatement of Consumer Contracts, is intended as a companion to the Restatement. It highlights three areas, where the Reporters’ ambition was only partially reflected in the final version of the Restatement. The first was to ground the restated rules and principles in a systematic, empirical analysis of the entire body of consumer contracts cases. The second goal was to avoid an emphasis on disclosure mandates that have been shown to be unhelpful and even counter-productive. The third goal was to infuse the Restatement with social science realism, especially in …

Bankruptcy Minimalism, Douglas Baird

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Contract Remedies And Search Efforts, Roy Baharad

Coase-Sandor Institute for Law & Economics Research Paper Series

Contract theorists routinely assume that opportunities for efficient breach are exogeneous. This prompts the conventional approach to contract remedies, according to which expectation damages are preferred to the disgorgement rule: when ex-post renegotiations are unfeasible, the former regime facilitates efficient breach while the latter deters it. In this paper, I offer a simple model in which two parties to a contract can exert search efforts to locate better contractual alternatives. The endogeneity of efficient-breach opportunities gives rise to a novel outlook on the choice of remedies for a breach of contract. Specifically, this paper opts out of the expectation damages …

The Economics Of Healthcare Fraud, Jetson Leder- Luis, Anup Malani

Coase-Sandor Institute for Law & Economics Research Paper Series

Healthcare fraud imposes a sizable cost on U.S. public healthcare budgets and distorts health care provision. We examine the economics of health care fraud and enforcement using theory and data and connect to a growing literature on the topic. We first offer a new economic definition of health care fraud that captures and connects the wide range of activities prosecuted as fraud. We define fraud as any divergence between the care an insurer says a patient qualifies for, the care a provider provides, and the care a provider bills for. Our definition clarifies the economic consequences of different categories of …

Judge Ai: Assessing Large Language Models In Judicial Decision-Making, Eric A. Posner, Shivam Saran

Coase-Sandor Institute for Law & Economics Research Paper Series

Can large language models (LLMs) replace human judges? By replicating a prior 2 x 2 factorial experiment conducted on 31 U.S. federal judges, we evaluate the legal reasoning of OpenAI’s GPT-4o. The experiment involves a simulated appeal in an international war crimes case, with two altered variables: the degree to which the defendant is sympathetically portrayed and the consistency of the lower court’s decision with precedent. We find that GPT-4o is strongly affected by precedent but not by sympathy, similar to students who were subjects in the same experiment but the opposite of the professional judges, who were influenced by …

Stubhub For Courts? Technology, Markets, And New Solutions To Court Congestion, Ronen Avraham, William H. J. Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

Rescheduling of court hearings is ubiquitous but virtually ignored by academic scholarship. This is so, despite its contributions to court congestion, a perennial problem for courts that has been the subject of repeated, and repeatedly unsuccessful, efforts at reform. In this Article, we aim to show that rescheduling merits scholarly attention, and by diagnosing why and how it contributes to court congestion and delay, we both explain why most efforts at reducing delay fail and identify new possibilities for speeding up dockets. We draw inspiration from online platforms such as StubHub and SpareFare, technologies that have facilitated rescheduling through easy-to-use …

From Wtp To Wtf: Valuation And Distributive Discourse, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Anatomy Of Marital Happiness, Sam Peltzman

Coase-Sandor Institute for Law & Economics Research Paper Series

Since 1972, the General Social Survey has periodically asked whether people are happy with Yes, Maybe or No type answers. Here I use a net “happiness” measure, which is percentage Yes less percentage No with Maybe treated as zero. Average happiness is around +20 on this scale for all respondents from 1972 to the last prepandemic survey (2018). However, there is a wide gap of around 30 points between married and unmarried respondents. This “marital premium” is this paper’s subject. I describe how this premium varies across and within population groups. These include standard socio demographics (age, sex, race education, …

Constitutional Drafting Processes And Constitutional Success, Adam Chilton, Murat C. Mungan, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

Several recent constitution-making processes have been celebrated for being participatory, inclusive, and representative. However, many of these processes also failed. We theorize that aspects of these kinds of constitutional drafting processes could reduce the probability of constitutional success. To show why, we construct a “Constitution Drafting game” (CD game) in which representatives from different interest groups must draft a constitution. We consider the case where the probability of constitutional success is single peaked, but the value from successful adoption is increasing in the degree of issue protection chosen. The drafting process then leads to protection choices that are above those …

The Genesis Of Constitutions: A Natural Language Processing Approach, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

The diffusion of constitutional ideas and models has been the subject of extensive scholarship. In this paper, we use natural language processing methods to examine the persistence of constitutional ideas and models, focusing on how 16 core and iconic constitutions influence 572 newer constitutions over a long period (1900–2020). Our findings indicate that “old” core constitutions (such as those of the U.S. of 1789, Spain of 1812, France of 1848, and to a lesser extent France of 1791) have maintained significant influence over those 121 years. Austria of 1920 and France of 1946 are the most influential among the 20th …

The Evolution Of Experiential Legal Education, Adam Chilton, Peter Joy, Kyle Rozema

Coase-Sandor Institute for Law & Economics Research Paper Series

To help bridge the gap between legal education and legal practice, in 2014 the American Bar Association adopted a requirement that law students take at least six credits of “experiential” courses. Despite limited research on the effects of this reform, the ABA is currently considering a new re- form that would require law students to take twice as many experiential credits to graduate. We provide new evidence for this debate by studying the evolution of experiential legal education and the impacts of the 2014 reform. We compile data reported by law schools to the ABA to document a dramatic rise …

Algorithmic Selection Of Iconic Constitutions, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

This chapter examines the influence of pre-20th century constitutions using a quantitative approach, comparing expert-selected “iconic” constitutions with those identified algorithmically. In prior work, human experts identified four influential constitutions: the U.S. 1791, France 1791, Spain 1812, and France 1848. Here, we employ a genetic algorithm and Document Term Matrix (DTM) analysis to assess which one or four of 180 pre-1899 constitutions had the greatest textual impact on 581 post-1900 constitutions. Two criteria guide the selection: coverage and originality. Through iterative optimization, the algorithm identifies the most textually influential constitutions, allowing for a direct comparison with expert selections. This chapter …

Fraudulent Transfer Law’S Forgotten Foundations, Douglas G. Baird

Coase-Sandor Institute for Law & Economics Research Paper Series

Fraudulent transfer law is one of the principal bulwarks of private law. Fraudulent transfer law, however, now faces a crisis. Courts have long assumed that it was easy to determine whether a debtor made a fraudulent transfer of its property. One could use traditional markers of ownership to determine whether the debtor transferred property to a confederate. But today most assets are intangible. Transactions happen in the blink of an eye, and they take place entirely on corporate books. Reliance on simple notions of what constitutes a “transfer” of property are wholly inadequate. Understanding what it means for a debtor …

The Limits And Promise Of Global Antitrust Law, Anu Bradford, Adam Chilton, Katerina Linos

Coase-Sandor Institute for Law & Economics Research Paper Series

A large body of evidence suggests that open, competitive markets are a key driver of economic development. In recognition of this fact, many of the world’s leading economies not only adopted their own antitrust laws to promote fair competition, but they also urged developing countries around the world to do the same. This resulted in a remarkable proliferation of global antitrust law over the last several decades. Many studies have empirically examined the effect of this development, and, consistent with the hopes of policymakers, they have largely found that adopting antitrust laws produces positive economic outcomes.

In this Article, we …

The Tom Sawyer Effect: Invisible Work And Labor Market Power, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Certain types of work-like behavior are not treated as paid labor in the law and are therefore not taxed or given workplace protections and are often not understood to be work by ordinary people. This kind of “invisible work” is exceedingly common. It encompasses not only the frequently discussed example of household labor, but also the work, or some of the work, of athletes, soldiers, students, artists, volunteers, religious and political figures, and consumers who implicitly trade work—and money—for products and services. Invisible work is the product of cultural understandings left over from the past or manufactured by businesses, which …

Those Elusive Algorithmic Harms: A Comment On Bar-Gill And Sunstein, Algorithmic Harm, Omri Ben-Shahar

Coase-Sandor Institute for Law & Economics Research Paper Series

Can we talk about harms of algorithms—of anything—without comparing them to the benefits? In Algorithmic Harm, Bar-Gill and Sunstein develop a theoretical framework to assess the impact of algorithms in consumer markets, focusing on harmful manipulation of unsophisticated buyers. But the same framework yields additional insights, not explored in the book—how algorithmic targeting and personalized prices benefit this same group of consumers. In this contribution to the book symposium, I examine this missing part, suggesting that algorithms’ ability to recognize different consumers often yields treatments favorable to weaker groups of consumers—an effect richly documented in the empirical economic literature. Absent …

Pillar Two: Much Ado About Next To Nothing?, Julie Roin

Coase-Sandor Institute for Law & Economics Research Paper Series

The OECD has spent the last fifteen years working on the design and implementation of rules for the taxation of the income derived from international transactions, rules that its members hope will both increase corporate tax revenues and minimize “destructive” tax competition. In 2021, it released its two-part “Inclusive Framework.” Although Pillar One of this Framework still languishes, legislation necessary for the implementation of Pillar Two, which is designed to force all countries to impose a minimum tax on income derived by large multinational enterprises, has been enacted by most of the countries in the European Union, Japan, South Korea …

Antitrust Analysis Of Vertical Restraints In Labor Markets, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Vertical restraints in labor markets are a neglected topic, but have taken on importance as the harms caused by labor market restraints have gained greater recognition. These restraints are typically a form of input foreclosure, which refers to action of a downstream buyer of inputs to hinder its competitors from accessing those inputs. But while labor markets are important input markets, there has been little discussion of how input foreclosure can be used to evaluate anticompetitive labor market transactions. This article fills that gap by providing a framework for analyzing input foreclosure in labor markets.

Ideological Concordance Between Students And Professors, Adam Bonica, Adam Chilton, Kyle Rozema, Maya Sen

Coase-Sandor Institute for Law & Economics Research Paper Series

We develop a measure of student-professor ideological concordance based on the share of faculty members who are more liberal than the students at a given school. We then use data on the ideology of students and professors in American law schools over more than a twenty-year period to estimate the degree of ideological concordance in the legal academy. We find that as professors have become more liberal over time, their students have become even more liberal. The result is that ideological concordance has increased over time and that by 2010 the average law student actually attended a law school with …