Law and Politics Commons^™

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan Feingold

Faculty Scholarship

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a …

Echoing Into The Void: Rucho’S State-Level Progeny, Avery E. Emery

Utah Law Review

When politicians are given free rein to draw districts, they choose their voters rather than allowing the voters to choose their representatives. They rely on “highprofile paid consultants, armies of lawyers, terabytes worth of voting data, advanced software, and even a supercomputer or two”386 to guarantee large margins for their party. This decennial process has reduced electoral competition, made the House of Representatives less responsive,388 and spread a sentiment of disenfranchisement throughout the electorate.

Now is the time for the judiciary—staffed by judges whose role in our constitutional system is to check the political branches—to take decisive action to protect …

The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility, Dr. Destaw A. Yigzaw

Brooklyn Journal of International Law

Under the Rome Statute, situations are referred to the International Criminal Court (“ICC” or “Court”) either by a state party or the Security Council. In recent years, however, referrals from both sources have become difficult to come by. Instead, there is an evolving practice of referrals by a coalition of third states parties (“group referrals”). Yet, a group referral as a trigger mechanism does not have an explicit textual basis under the Rome Statute (“Statute” or “ICC Statute”). There is no rationale for it either, since a referral by a single state party is all that is needed to trigger …

What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani

Brooklyn Journal of Corporate, Financial & Commercial Law

Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …

The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins

Journal of Law and Policy

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …

The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia

Journal of Law and Policy

Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …

The Pet Fish Canon, William N. Eskridge Jr.

Journal of Law and Policy

Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as …

Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar

Journal of Law and Policy

In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of …

Growing Rich Off The Fruits Of Private Incarceration, Joseph Hennessy

Journal of Law and Policy

Mass incarceration is a uniquely American phenomenon. With roots in chattel slavery, modern mass incarceration truly exploded in the latter half of the 20th Century. As Reagan-era politicians advocated for fiscal conservatism on the one hand and heavy-handed responses to crime on the other, private prison pioneers saw an opportunity to derive profit from society’s most vulnerable. Today, private prisons house as much as half of some states’ total prison population, and private prison corporations have demonstrated an insatiable desire to expand their reach. This Note explores the unique social vulnerability of privately incarcerated people through a statutory and judicial …

Shaping Preferences With Pigouvian Taxes, Gary M. Lucas Jr.

Faculty Scholarship

A Pigouvian tax is a tax that is imposed to correct an externality, which arises when a person engages in behavior that harms others without their consent. Pigouvian taxes are popular among academics—with prominent economists and legal scholars arguing for their imposition on myriad goods and activities that harm third parties, like carbon emissions and alcohol. Policymakers have recently been receptive to at least some of these arguments as evidenced by taxes imposed on or proposed for a variety of externality-generating goods, including guns, plastic bags, and sugary drinks.

The conventional economic rationale for Pigouvian taxes assumes that they affect …

Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu, Francis Gurry, Keun Lee

Faculty Scholarship

While growing disparities in wealth and income are well-documented across the globe, the role of intellectual property rights is often overlooked. This volume brings together leading commentators from around the world to interrogate the interrelationship between intellectual property and economic inequality. Interdisciplinary and globally oriented by design, the book features economists, legal scholars, policy analysts, and other experts. Chapters address the impact of intellectual property rights on economic inequality, the effect of economic inequality on the protection and enforcement of these rights, and the potential use of innovation law and policy to help reduce economic inequality. The volume also tackles …

Placing The Four Rounds Of Israeli-Palestinian Negotiations In The Twenty-First Century In A Historical And Philosophical Context, Michael J. Reimer Dr

Department of Political Science and Law Faculty Scholarship and Creative Works

This paper will take a three-pronged approach to the analysis of prior treaty negotiations and their comparison to the Israeli Palestinian conflict. The first prong, which will be addressed in the next section, will be a historical analysis of other treaty negotiations which resulted in end of conflict treaties. These examinations will include The Congress of Vienna, 1814-1815; the Portsmouth Treaty, 1905 which involved a Treaty between a European and a non-European state2 negotiated by the President of the United States and American Diplomats; the Paris Peace Conferences of 19193 ; and Multiparty Mediation in Cyprus, 1963-1965. In each of …

With Fear, Favor, And Flawed Analysis: Decision-Making In The U.S, Immigration Courts, Karen Musalo, Anna O. Law, Annie P. Daher, Katharine Donato, Chelsea Meinders

Publications and Research

Immigration judges (IJs), housed within the Executive Office for Immigration Review within the Department of Justice (DOJ), make decisions in asylum and withholding claims, which are life or death matters. And although their title is “judge,” IJs are DOJ attorneys who lack independence and are par- ticularly susceptible to political pressures. Federal court judges and scholars alike have criticized the quality and fairness of IJ decision-making, and many studies have been carried out to better understand the factors that impact it. The prior studies have relied principally on quantitative data because IJ decisions are not publicly available or searchable in …

Personhood, Politics, Assisted Reproduction, And The Law Post-Dobbs, Myrisha S. Lewis

Pace Law Review

With the end of the federal constitutional right to abortion, state legislatures and state courts have become far more important in the sphere of reproductive rights. Before Dobbs, anti-abortion advocates had significant (albeit increasingly porous) ceilings on what they could prohibit in relation to reproductive health care. A significant check on those actions is now gone.

In the wake of Dobbs, societal debates about personhood have increased and expanded in terms of their practical implications. Before Dobbs, anti-abortion advocates admitted that Roe and subsequent cases limited the scope of their arguments, especially in relation to the legality …

The Good Officer: President Trump, General Milley, And The “Necessity” Of Constitutional Fidelity, John C. Dehn

Brooklyn Law Review

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital …

The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke

Brooklyn Law Review

This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

Rising Temperatures, The Prison Litigation Reform Act, And The Heat Death Of Human Dignity In Texas Prisons, Brianne Wylie

Northwestern University Law Review

This Note seeks to shed light on the life-threatening danger of extreme heat in un-air-conditioned Texas prisons. The Prison Litigation Reform Act (PLRA) starkly limits the relief available to those suffering and dying in these prisons. This Note proposes an amendment to the legislation that could create a path toward lasting relief for incarcerated people. After analyzing the effects of increasing heat on the particularly vulnerable prison population, this Note analyzes how the Supreme Court and the Fifth Circuit have handled claims alleging constitutionally violative prison conditions under the Eighth Amendment—in short, ineffectively, if at all. This Note then details …

Introduction Corporate Governance At Work, Claire Hill, Silvie Rohr

Chicago-Kent Law Review

No abstract provided.

Lawyers’ And Law Professors’ Experience With Worker Governance, Brett Mcdonnell

Chicago-Kent Law Review

No abstract provided.

Making Racial Equity Audits Effective, Alvin Velazquez

Chicago-Kent Law Review

No abstract provided.

Interview With David Webber: Reflections On The Past, Present, And Future Of Labor’S Capital, David Webber, Alvin Velazquez

Chicago-Kent Law Review

No abstract provided.

Women And Corporate Governance: Time Horizons And Stakeholder Analysis, June Carbone

Chicago-Kent Law Review

No abstract provided.

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

Chicago-Kent Law Review

No abstract provided.

Corporate Governance For Platform Workers, Grant M. Hayden, Matthew T. Bodie

Chicago-Kent Law Review

No abstract provided.

Labor Law, Ownership, And The Firm, Sanjukta Paul

Chicago-Kent Law Review

No abstract provided.

Corporate Purpose: A Management Concept And The Role Of Contract Design, Silvie Rohr

Chicago-Kent Law Review

No abstract provided.

The Rhetoric And Reality Of Shareholder Profit Maximization, Claire Hill

Chicago-Kent Law Review

No abstract provided.

Worker Voice In Retirement Plan Governance, Natalya Shnitser

Chicago-Kent Law Review

No abstract provided.

The Human Capital Imperative: How Does Board Governance Need To Evolve?, Mallory Bucher

Chicago-Kent Law Review

No abstract provided.