Law Commons^™

Redistributing Justice, Benjamin Levin, Kate Levine

Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

A Theory Of Genetic Dimensions In The Law, Yaniv Heled, Liza Vertinsky, Ana Santos Rutschman

Faculty Publications

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.

However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the …

Squeezing Blood From Stones? A Comparative Analysis Of Tax Relief For Victim-Survivors In Australia And The United States, Christine Speidel, Leslie Book, Ann Kayis-Kumar

Faculty Publications

Women who leave abusive relationships generally do so with increased debt, reduced assets, insecure housing and longer-term economic insecurity. Most of these women will be experiencing economic abuse even after the relationship has ended, and many cite financial instability as a key factor driving them back into abusive relationships. So, it is imperative that the tax and transfer system helps rather than hinders (albeit inadvertently) this cohort of financially vulnerable taxpayers. However, this is not always the case, with victim-survivors of economic abuse often liable for tax debts incurred by former partners operating businesses in the victim-survivor's name.

This article …

An Affirmative Approach To The Supreme Court's Major Questions Doctrine & Chevron Skepticism, Brandon Weiss

Scholarly Articles in Law Reviews & Journals

In light of the Major Questions Doctrine and the U.S. Supreme Court’s broader retrenchment from Chevron, which for forty years has dictated that in the face of statutory ambiguity courts will defer to reasonable agency interpretations, difficult questions arise for agency officials. For example, as the U.S. Department of Housing and Urban Development (HUD) considers options for implementing the Federal Fair Housing Act, some scholars have cautioned against running afoul of the Court’s recent jurisprudence and have argued for a relatively conservative approach to rulemaking, focused on voluntary incentives for compliance.

In this Essay, I disagree and argue for a …

Language, Legitimacy, And The Law: The Social Roots Of Legal Obligation, Joshua Keton

Dissertations, Theses, and Capstone Projects

In a recent turn, both legal scholarship and judicial practice in the United States have converged on the idea that the content of the law is grounded on moral facts—especially facts about democracy. Leveraging insights from the philosophy of language, especially the underdetermination of meaning by syntax and semantics, I argue that textualism can only be reconstructed as a small part of a complete theory of legal interpretation. I then consider a more serious claim to the necessity of moral facts in metaphysically grounding the content of the law. As Mark Greenberg’s anti-positivist theory would have it, the content of …

Perspectives On The Constitution Of The War On Drugs: A Collection Of Posts From The Balkinization Blog, Douglas A. Berman, Rachel Barkow, Louis Michael Seidman, Kimani Paul-Emile, Jennifer D. Oliva, Shaun Ossei-Owusu, Katherine Shaw, Paul Butler, David E. Pozen

Faculty Scholarship

This collection of essays provides extended commentary from multiple law professors on David Pozen’s 2024 book, The Constitution of the War on Drugs. Pozen’s book provides a rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access. Yale Law Professor Jack Balkin, recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields …

Is John Stuart Mill's On Liberty Obsolete?, Vincent A. Blasi

Faculty Scholarship

In On Liberty, published in 1859, John Stuart Mill argues for the “absolute” protection of the “liberty of thought and discussion.” Ever the empiricist, he maintains that such uncompromised freedom, not for all communication or self-expression but for the subset of those activities that qualifies as thought and discussion, would generate the best overall consequences for societies such as Great Britain and the United States. The advent of digital technology has altered how thought and discussion is generated, distributed, and received in ways that might problematize some of the empirical assumptions upon which Mill's argument in On Liberty is …

Rays Of Hope For The Administrative State, Peter L. Strauss

Faculty Scholarship

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the agency, so much more familiar with its statutes as a whole). This was the position clearly taken by the Court in 1940, in United States v. American Trucking Ass’ns., and to go beyond it into decision, rather than review, of agency judgments would …

Designing Contracts For A Modern Classroom: The Abcs Of Cbas, Elizabeth Chu, Molly Gurny, Tong Koh, Evan Stone, Chiara Grabill, Jill Mclaughlin

Center for Public Research and Leadership

Although teacher contracts (commonly, collective bargaining agreements or CBAs) provide critical workforce protections for teachers and govern much of the profession, they remain an underutilized lever for enabling strong teaching and learning, elevating the teaching profession, and equipping school systems with tools and capacities to confront the challenges of a rapidly changing, increasingly uncertain world.

Drawing on research spanning states, school systems, and time periods, this report sets forth a conceptual framework that draws attention to teacher contracts — both what they say and the ways they are built — as a potentially powerful, already-embedded, forward-looking mechanism for professionalizing teaching …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Agency Use Of Indirect Benefits To Justify Regulation, Abe Eichner

Michigan Law Review

Executive agencies have long used indirect benefits—meaning benefits beyond the express purpose of a regulation—to justify their rulemakings. However, the statutes that provide agencies with regulatory authority rarely explicitly direct agencies to consider indirect benefits. Lower courts disagree over whether consideration of indirect benefits is permissible, and the Supreme Court has reserved the question for a future case. Courts and existing scholarship have largely asked whether particular statutory provisions authorize consideration of indirect benefits. This Note contends that, even without such statutory authorization, indirect benefits are presumptively permissible because they further three traditional administrative law values: rational decisionmaking, transparency, and …

Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll

Michigan Law Review

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is …

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

Articles

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

The Birth Of The Civil Death Penalty And The Expansion Of Forced Adoptions: Reassessing The Concept Of Termination Of Parental Rights In Light Of Its History, Purposes, And Current Efficacy, Chris Gottlieb

Cardozo Law Review

The legal construct of termination of parental rights—the act of permanently severing the legal relationship between parent and child—is deeply embedded in contemporary American child welfare law. Indeed, since the passage of the Adoption and Safe Families Act of 1997 (ASFA), it can fairly be said that our entire foster care system is structured around the threat of terminating parental rights. From the day a child is taken into state-supervised care, the clock begins ticking toward the possible permanent destruction of the parent-child relationship. In response to the financial incentives in ASFA that reward states for terminating parents’ rights, states …

Regulating Congressional Insider Trading: The Rotten Egg Approach, Sarah J. Williams

Cardozo Law Review

A 2004 study revealed that the stock portfolios of members of Congress were consistently outperforming those of the investing public. The financial success of federal lawmakers was statistically correlated to the use of nonpublic information obtained while performing legislative responsibilities—reasonably characterizable as insider trading. Cries of dismay over such profiteering by lawmakers have been echoing in the public domain since Samuel Chase, Maryland’s representative in the Continental Congress, directed colleagues to corner the flour market in 1778 after learning that copious quantities of it would be purchased by the government to support the Continental Army. Notwithstanding efforts to apply insider …

Data Privacy By Contract, Ifeoma Ajunwa, Austin Kamer

Cardozo Law Review

Protecting consumer privacy rights presents a particular challenge given the prevalence of data breaches. This Article notes that current law is woefully inadequate in protecting the privacy rights of consumers. Notably, the law fails in the following four areas: (1) classification of consumer data, (2) lack of a comprehensive approach, (3) after-the-fact focus, and (4) limited accountability for third parties. Although it may be impossible to eliminate all data breaches, more regulations can bolster protection without restricting technological advancements. This Article proposes a contractual approach to privacy protection for consumers. It argues that the creation of mandatory implied contractual terms …

On Comprehensive Pluralism: Two Pluralistic Deficits, Daniel Bonilla Maldonado

Cardozo Law Review

A Pluralist Theory of Constitutional Justice offers a powerful normative theory of liberal constitutionalism: comprehensive pluralism. This theory links liberal constitutionalism with distributive justice. Comprehensive pluralism requires that the three dimensions that compose this concept of justice—redistribution, recognition, and representation—drive the attempts to balance ethos and demos in liberal constitutional democracies, as well as the attempts to balance the singular, plural, and universal dimensions that constitute such political communities. The normative proposal offered by Michel Rosenfeld in his book has numerous strengths. Three of them, which cut across the entirety of his proposal, are particularly noteworthy. On the one hand, …

The Universal And Its Others: Dialectics And Conflict In Comprehensive Pluralism, Julie Saada

Cardozo Law Review

Since the release of Rawls’s A Theory of Justice in 1971, discussions on the role of groups, redistribution, and symbolic recognition have gained unprecedented attention in North America and Europe. How can we ensure equal recognition among groups and foster equitable access to goods in a way that provides fair distribution not only among groups (plurality) but also within groups (the singular) so that all are politically and socially included on a common shared basis (the universal)? While the approach to this question differs between America and Europe—think of French republican universalism and the historical evolution of the concept of …

Speaking Authorship: Honoring Indigenous Language Sovereignty In Joint Authorship Doctrines, Nancy Fu

Cardozo Law Review

In 2022, the Standing Rock Sioux Tribal Council unanimously voted to banish the Lakota Language Consortium (LLC) and its two European founders from the reservation. The LLC began working with the Tribe in the early 2000s to document the Lakota language and created numerous recordings of Lakota elders, a Lakota dictionary, and many other educational materials. However, the LLC registered those works’ copyrights solely under its own name, so Tribe members must now seek the LLC’s permission to use or access them, which may require payment and may not be granted at all, even for recordings of the requestor’s own …

Bound To Misfortune: Protecting Juvenile Abortion Through The Right To Travel, John H.C. Hughes

Cardozo Law Review

On July 1, 2022, the Indianapolis Star reported that a ten-year-old Ohio girl, who had been raped and was six weeks pregnant, had sought an abortion in Indiana. Abortion had been outlawed in Ohio mere hours after the Supreme Court overturned Roe v. Wade, but it remained legal ˙in neighboring Indiana. The Ohio girl was able to cross the state border, get the abortion, and—presumably—return home safely. But if lawmakers like those in Missouri, South Carolina, Texas, and a handful of other states have their way, pregnant© children in abortion-restrictive states will be unable to avail themselves of neighboring …

The Making Of Presidential Administration, Ashraf Ahmed, Lev Menand, Noah Rosenblum

Faculty Scholarship

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a …

Sect And Superstition: The Protestant Framework Of American Codification, Kellen R. Funk

Faculty Scholarship

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism …

On The Ftc’S Authority To Promulgate Trade Regulation Rules, Lev Menand, Tim Wu

Faculty Scholarship

On April 23, 2024, the FTC finalized a trade regulation rule prohibiting employers from enforcing non-compete agreements against workers. In response, business groups sued and Daniel Crane, a law professor at the University of Michigan, published a piece in Notice and Comment that reported on the views of 17 anonymous online volunteers regarding the fate of the rule in the courts. All but one of the volunteers, drawn from law professor listservs, predicted the law would be struck down, either based on the “Major Questions Doctrine” (MQD) or for lack of authority to promulgate substantive rules governing unfair methods of …

The President’S Authority Over Cross-Border Data Flows, Anupam Chander, Paul M. Schwartz

Georgetown Law Faculty Publications and Other Works

This Article reveals a surprising expansion of presidential authority to control goods and services available in the United States because of the information flows that they entail. Such authority is grounded in laws focused on protecting national security, here with respect to foreign surveillance and propaganda. But broad executive powers over our information infrastructure raises significant concerns with respect to core American values of free expression and due process. Worries about unfettered foreign access to data should be coupled with worries about unfettered executive control over our information services and technologies.

Re-Calibration Of Curial Intervention In Public Policy Challenges Against Arbitral Awards, Darius Chan, Elias Ngai Hum Khong

Research Collection Yong Pung How School Of Law

When an award debtor challenges an award on public policy grounds, usually the principle of finality prevails, and courts will consider the award debtor bound by the decision of the tribunal. However, because public policy has implications beyond the disputing parties themselves, some courts consider themselves justified in reviewing the award. There is therefore a tension between finality versus the court’s duty to stand as the guardian of public policy. Whether a review of an award should be allowed under this ground, and if so, the extent of permissible review, differs across various jurisdictions. For instance, common law authorities have …

Sustainability And The Sunlight Of Disclosure: Esg Disclosure In Three Asian Financial Centres, Rachel Phang, Yaru Chia

Research Collection Yong Pung How School Of Law

The prevailing paradigm of sustainable finance places great importance on environmental, social and governance (ESG) information and, therefore, on the mechanism of reporting and disclosure. This article presents, analyses and compares the approaches to ESG disclosure in three Asian financial centres: Singapore, Hong Kong and Shanghai. The article uncovers commonalities and divergences in the drivers, dynamics, content and trends of ESG disclosure in the selected jurisdictions. In doing so, it looks forwards, seeking to anticipate and shape the development of ESG disclosure in Asia. At the same time, it looks beyond ESG disclosure, remaining mindful that the mechanism itself is …

Ai Employment Decision-Making: Integrating The Equal Opportunity Merit Principle And Explainable Ai, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

Artificial intelligence (AI) tools used in employment decision-making cut across the multiple stages of job advertisements, shortlisting, interviews and hiring, and actual and potential bias can arise in each of these stages. One major challenge is to mitigate AI bias and promote fairness in opaque AI systems. This paper argues that the equal opportunity merit principle is an ethical approach for fair AI employment decision-making. Further, explainable AI can mitigate the opacity problem by placing greater emphasis on enhancing the understanding of reasonable users (employing organisations) and affected persons (employees and job candidates) as to the AI output. Both the …

Shaping Green Regionalism: New Trade Law Approaches To Environmental Sustainability, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

Green regionalism aims to mutually reinforce environmental governance and economic integration. The article provides the first analysis of green regionalism in international law. It argues that green regionalism represents a paradigm shift in global normative endeavours towards environmental sustainability. By contextualising three waves of global regionalism, the article unveils the evolving architecture of green regionalism alongside negotiations of the World Trade Organization and multilateral environmental agreements. Moreover, it sheds light on the pertinent disputes and features of new green initiatives galvanised by the European Union, the United States and Asia-Pacific countries. These developments are pivotal in understanding the trade-environment nexus …

Law, Love, And Freedom: From The Sacred To The Secular, Seow Hon Tan

Research Collection Yong Pung How School Of Law

In this book, published under a series on the intersection of law and Christianity, Neoh undertakes the ambitious project of exploring the concepts of law, love, and freedom to illuminate the moral vision which underlies our secular legal order.

Fintech: Finance, Technology And Regulation, Nydia Remolina

Research Collection Yong Pung How School Of Law

Fintech: finance, technology and regulation, by Ross P. Buckley, Douglas W. Arner,and Dirk A. Zetzsche, Cambridge, Cambridge University Press, 2024, 330 pp, £29.99(paperback), ISBN 978-1-009-07821-4