Law Commons^™

Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?, Anthony Casey, Tom Tom Ginsburg

Public Law and Legal Theory Working Papers

In the last few years, corporations have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from various stakeholders, as well as from the general public and the media. Sometimes such statements are uncontroversial, but other times, firms find themselves in a no-win position, in which both silence and voice will offend some core constituency. Crafting meaningful public-facing statements becomes a major challenge.

In this article, we ask whether these corporations should adopt some form of express upfront policy on when they will and when they will not …

Ideological Concordance Between Students And Professors, Adam Bonica

Public Law and Legal Theory Working Papers

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 …

Which Constitutional Provisions Are Most Important?, Richard Albert, Netta Barak Corren, Daniel M. Brinks, Adam Chilton, Rosalind Dixon, Zachary Elkins, Tom Ginsburg, Ran Hirschl, David Landau, Ashley Moran, Yvonne Tew, Mila Versteeg

Public Law and Legal Theory Working Papers

National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional provisions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional studies: …

A New Measure Of Surviving Children That Sheds Light On Long-Term Trends In Fertility, Anup Malani, Ari Jacob

Public Law and Legal Theory Working Papers

The consequences of fertility decline flow primarily from reduction in the number of surviving children, i.e., both births and survival, not simply from reductions in births. Therefore, neoclassical economic theories that attempt to explain fertility decline (e.g., quantity-quality models) hinge on preferences for surviving children, not births per se. This paper provides a new measure of surviving children. Effective fertility rate (EFR) is the product of the current fertility rate and the projected probability that a child survives until some age A. This age A could be between 15-49 for a measure (EFRR) that tracks reproductive potential, or 15-65 for …

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Public Law and Legal Theory Working Papers

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Structural Logics Of Presidential Disqualification: An Essay On Trump V. Anderson, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This Comment analyzes the Trump v. Anderson per curiam on its own terms, and by the criteria generically employed by the Court in other rulings. I untangle and then closely evaluate three distinct structural logics upon which the Court’s holding rests. These logic sound in terms of the registers (roughly speaking) of federalism, the separation of powers, and democracy. Because the first two founds prove incoherent, I show that the opinion ultimately rests on an (unpersuasive) logic of democratic defense. The disqualification shares this foundation with the Court’s subsequent immunity decision, which is also briefly discussed. Both judgments, I show, …

The Trouble With Classifications, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The Supreme Court relies increasingly on anti-classification rules to implement the Constitution’s commands of even-handed state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—triggering the familiar strict scrutiny analysis. So defined, anti-classification rules now dominate Equal Protection, Free Speech, ‘dormant’ Commerce Clause, and even Free Exercise jurisprudence. The Roberts Court celebrates them as “commonsense,” citing their …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Public Law and Legal Theory Working Papers

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Administrative Enslavement, Adam Davidson

Public Law and Legal Theory Working Papers

There are currently over a million people enslaved in the United States. Under threat of horrendous punishment, they cook, clean, and even fight fires. They do this not in the shadow of the law but with the express blessing of the Thirteenth Amendment’s Except Clause, which permits enslavement and involuntary servitude as punishment for a crime.

Despite discussions of this exception in law reviews, news reports, and Netflix documentaries, few commentators have recognized that this enslavement happens silently. No prosecutor, judge, or defense attorney tells convicted people that they will be enslaved as punishment for their crime. It is only …

An Apa For Tax, David A. Weisbach

Public Law and Legal Theory Working Papers

Recent Supreme Court cases threaten to upend the administrative law applicable to the tax system. Loper Bright eliminates Chevron deference. Ohio v. EPA heightens the scrutiny given to regulatory preambles. And Corner Post effectively eliminates the statute of limitations for challenging the validity regulations. A number of lower court decisions move in the same direction, aggressively using administrative law to invalidate guidance. Combined, these decisions threaten to make issuing guidance much more difficult and to slow the guidance process.

These decisions are based on the Administrative Procedure Act or related statutes rather than constitutional principles. Therefore, to the extent that …

Bootstrapped: A (Qualified) Defense Of Practice-Based Constitutional Argument, Alma Diamond

Public Law and Legal Theory Working Papers

We have our Constitution in common, even if we share very little else. This, at least, is a core tenet of our constitutional order: that we share in a single framework of duties and entitlements despite our underlying moral, political, and philosophical differences. But is it really possible to occupy a shared legal world if we live in very different moral, political and philosophical worlds? This is the question raised by deeply consequential constitutional controversies in an increasingly polarized society. It is a question about the basis of, and justification for, constitutional law. Is our constitutional law ultimately a matter …

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, James Barnett

SMU Annual Texas Survey

This Article describes and analyzes major developments in partnership law that occurred in Texas between December 1 and November 30 of 2022.

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

Politicians The Founders Warned You About, Neil Fulton

UC Law Constitutional Quarterly

Many articles have explored the Founders’ intentions regarding the constitutional text. Much less attention has focused on the Founders’ ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …

Skinny Labels: Changing Scenario Of Induced Infringement And Public Policy, Sandhu, Amit Dhillon

Santa Clara High Technology Law Journal

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring …

Reproductive Rights And Medico-Legal Education Post-Dobbs: A Fireside Chat, Michael S. Sinha, Anna Krotinger, Maya A. Phan, Louise P. King

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was a pivotal moment that reshaped the landscape of abortion policy and delivery of abortion care in the United States. To create a space for critical reflection on the implications of Dobbs for the teaching and learning of abortion care in both medical and legal education, the authors engage in a dialogue highlighting the varied perspectives of professionals and professionals-in-training in both the medical and legal professions. As new attacks on reproductive autonomy continue at both state and federal levels, we foreshadow a tumultuous landscape for abortion policy …

Coping With Coppa: Exploring Alternatives To The Children's Online Privacy Protection Act, Andrew Parra

Indiana Journal of Law and Social Equality

The Children’s Online Privacy Protection Act of 1998 (COPPA) stands as one of the greatest protectors of children’s privacy for nearly twenty-five years. However, COPPA has struggled to keep pace with technological changes during this time, and the COVID-19 pandemic highlighted the shortcomings of COPPA regulations as children were forced to spend increased amounts of time in digital spaces. As the Federal Trade Commission (FTC) is set to make changes to COPPA, it is necessary to consider what changes would be most beneficial to protect children. This paper will explore the current regulatory framework, its strengths and weaknesses, and then …

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

The Neoclassical View Of Corporate Fiduciary Duty Law, Zachary J. Gubler

University of Chicago Law Review

Traditionally, corporate fiduciary duties are said to run to the corporation itself. But what does this mean? Something, this Article argues, that is quite different from what both shareholder and stakeholder value maximization proponents think. Specifically, the argument is that corporate fiduciary duties are owed not to any flesh-and-blood stakeholder, including current shareholders, but rather to a hypothetical permanent investor whose holding period is forever. Like any statement of corporate purpose, this “permanent equity maximization norm” is rooted in an underlying model of the corporation. In this case, the underlying model must be one that sees the corporation as a …

Of Convergence And Contingency: Some Thoughts On Public Firm Fiduciary Duties, Jay B. Kesten

Scholarly Publications

No abstract provided.

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

Scholarly Publications

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members' causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered …

Contents, North Carolina Law Review

North Carolina Law Review

No abstract provided.

Transforming Legal Sex, Noa Ben-Asher

North Carolina Law Review

No abstract provided.

Making A Mother: The Supreme Court And The Constitutive Rhetoric Of Motherhood, Lucy Williams

North Carolina Law Review

No abstract provided.

Irreconcilable: Mcdonnell Douglas And Summary Judgment, Sandra F. Sperino

North Carolina Law Review

No abstract provided.

Flanking Feres: The Camp Lejeune Justice Act Of 2022 And The Future Of The Military's Sovereign Immunity, William Rhyne

North Carolina Law Review

No abstract provided.

Stigma In The Sunshine State: How The Eleventh Circuit Ignored Important Equal Protection Considerations And Contributed To The Panic Against The Transgender Community, Christopher M. Thomas

North Carolina Law Review

No abstract provided.

"One Free Rape": The Consequences Of The Post-Notice Approach To Title Ix's Deliberate Indifference Requirement, Sharis Molly Manokian

North Carolina Law Review

No abstract provided.

Investor-State Climate Litigation: Could International Investment Law Help To Protect The Climate?, Dr. Andreas Buser

Indian Journal of International Economic Law

Climate Protection and International Investment Law have an ambiguous relationship. Whereas some scholars highlight that investment Law could help in protecting green investments many commentators depict investment protection as an obstacle to States’ climate mitigation policies. This article seeks to go beyond that limited dichotomy in assessing whether investment law could be a tool for investors to argue for more, rather than less climate protection. In particular, full protection and security clauses may well be interpreted to contain due diligence obligations to protect climate sensitive investments against effects of climate change. Moreover, if States postpone climate protection to a time, …

Regulatory Autonomy And Article Xxiv Of Gatt, Dr. Delroy S. Beckford

Indian Journal of International Economic Law

This article focusses on regulatory autonomy in the context of Article XXIV of GATT navigating issues which touch and concern the internal and external liberalisation requirements and their implication for core non-discrimination principles, the Enabling Clause, mutual recognition agreements, and specific disciplines such as trade remedies, SPS measures, TBT measures, and Article XX exceptions. The article proceeds on the premise that these areas of trade coverage offer significant scope for the realisation of regulatory autonomy for countries to fashion their domestic trade policy agenda consistent with their developmental requirements, but questions whether the current state of the jurisprudence is amenable …