Law Commons^™

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 …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

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.

Severability And Liberty, Randy J. Kozel

Journal Articles

In US federal courts and the courts of many states, the presumption of statutory severability leads judges to separate a statute’s unlawful elements from its lawful ones. This article contends that the presumption becomes problematic when the effect of severing is to restrict the constitutional rights of a group whom the legislature exempted from regulation. Presumptive severability draws on a conception of judicial review that aspires to minimize interference with enacted legislation. But there is a countervailing constitutional interest in protecting exempted groups from restrictions on their liberty unless and until the legislature directs otherwise. It is these competing strands …

Administering Presidential Elections And Counting Electoral Votes After Trump V. Anderson, Derek T. Muller

Journal Articles

In the landmark case Trump v. Anderson, the Supreme Court unanimously held that states lack the unilateral power to exclude presidential candidates from the ballot on the basis of Section 3 of the Fourteenth Amendment. But while the Court was united in its essential holding, the Justices fractured in their reasoning, leaving significant questions about Congress's role in enforcing Section 3 against presidential candidates.

This Article examines the fault lines in Trump v. Anderson and analyzes how Congress's power to count electoral votes under the Twelfth Amendment intersects with its authority to enforce Section 3 of the Fourteenth Amendment. …

Are Nonprofit Tax Exemptions And Deductions “Federal Financial Assistance”? Should They Be?, Lloyd Hitoshi Mayer

Journal Articles

Two recent federal court decisions have reignited the debate over whether “Federal financial assistance” as used in four federal anti-discrimination statutes includes the tax benefits enjoyed by most nonprofit organizations. Both courts concluded that it does. While an appellate court reversed one decision, and the other case settled without appellate review, these holdings create significant uncertainty. And this uncertainty affects the more than 1.8 million tax-exempt nonprofits, many if not most of which do not receive federal financial assistance through other channels and so could safely conclude these statutes do not reach them, absent these decisions.

This Article first considers …

Too Essential To Fail: Lessons From County Fiscal Crises, Michael A. Francus

Journal Articles

This Article draws out the lessons of counties for municipal finance. To do so, the Article begins by unpacking the municipal finance regulations that have provided counties with extraordinary fiscal safety. The Article then turns to case studies of the eleven counties that either filed for bankruptcy or had state fiscal interventions since the passage of the Bankruptcy Code in 1978. Those case studies show how counties' finances can (in rare cases) go wrong despite well-designed municipal finance regulations. The case studies also show how counties have successfully responded to those crises through bankruptcy and fiscal intervention.

Using that analysis, …

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 …

What Is Trump Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly …

The Fiduciary Code Of Capital And Climate Change, Seth Davis, Gregory Shaffer

Georgetown Law Faculty Publications and Other Works

Fiduciary law is part of the “code” for the management of capital, as Katharina Pistor has conceptualized law. Climate activists, attorneys, investors, and international organisations have turned to fiduciary law for legal solutions to the ongoing problem of inadequate corporate and state action in response to climate change. Our thesis is that the turn to fiduciary law by norm entrepreneurs is an attempt to encode a concern for climate change within the management of capital. We make two contributions to the literature on private law and climate change. First, we rigorously identify the features of fiduciary law that make it …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Does The Original Meaning Of The Fourteenth Amendment Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects "economic liberty." To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one's choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.

In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. …

Just Research And Citation, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey …

Economic Sanctions And The Law, Andrew Kent, Thomas H. Lee And Harlan Cohen

Fordham International Law Journal

No abstract provided.

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 …