Law and Politics Commons^™

Will The Supreme Court Ever Help Victims Of Workplace Sexual Harassment Again? Why Adopting A Uniform Reasonableness Standard May Resolve A 20+ Year Circuit Split, Allyson Buchanan

Chicago-Kent Law Review

No abstract provided.

Consumer Protection Rights Lost In The Undergrowth Of The Amazon: Amazon’S Policies Quietly Facilityating An Anticompetitive E-Commerce Enviornment, Stephen Cruz

Chicago-Kent Law Review

No abstract provided.

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 …

Symposium Introduction, Jorge Fabra-Zamora

Buffalo Law Review

No abstract provided.

"Waves Of Freedom": Kant And The Right To Rescue On The High Seas, Aravind Ganesh

Buffalo Law Review

This Article draws upon the legal philosophy of Immanuel Kant to argue that all seafarers—from stateless migrants to billionaires on mega-yachts—possess legal rights to rescue on the high seas. These rights are of the kind legal practitioners call “human rights,” and correspond to obligations enforceable against the flag state of any Coast Guard, naval, or other “public” vessel receiving the seafarers’ distress signals. A second, corollary claim is that we must abandon the “Grotian” model of the seas as commons and view them instead as “global public goods” that the international legal order always already maintains through institutions for the …

Legality Beyond The State, David Lefkowitz

Buffalo Law Review

Inquiry into law beyond the state, or indeed within it, necessarily presupposes a concept of law. Consider, for example, H.L.A.’s account of international law.1 Hart famously characterizes law in terms of a union of primary and secondary rules.2 Understood in functional terms, primary rules govern actions, while secondary rules govern rules. Hart also pays particular attention to a special class of secondary rules, namely those that create specific offices whose occupants are empowered to identify, alter, apply, and enforce a society’s rules. An advanced legal system, then, is a practice of holding accountable constituted by both a hierarchy of norms—primary …

The Rule Of Interlegality, Nicole Roughan

Buffalo Law Review

A “recognition model of legality” grounds legality upon the normative significance of recognition of the role of the official of law, and the requirements of a moral relation of recognition between law’s officials and subjects. On this model, plural overlapping claims to legality can undermine the rule of law by disrupting recognition of both the role of the official and the moral relation of legality between officials and subjects. This Essay examines the legality deficits that arise from conflicting recognitions of officiality and subjection in contexts of overlapping state and Indigenous legal orders. In such contexts of plural overlapping claims …

The Workings Of Legal Exceptionalism: Arbitration As A Portal To Stateless Law-In-Action Regimes, Thomas Schultz

Buffalo Law Review

This Essay seeks to explores the fertility of thinking about arbitration as a portal to stateless legal regimes. Using the distinction between law in books and law in action, as well as the concepts of social and political disembeddedness and quiet politics, it argues that under the current paradigm of arbitration, it operates as a porous portal, getting corporate and natural citizens to escape into stateless law-in-action legal regimes (though in practice not into a law-in-books stateless legal regime). This raises questions of control of and accountability for the political effects of such stateless law-inaction legal regimes on the rest …

The Postnational Aspirations Of European Law, Paul Linden-Retek

Buffalo Law Review

This Essay begins from a particular quarrel over the interpretation of the German Federal Constitutional Court’s PSPP judgment of May 2020 to open onto questions of how to conceive political freedom beyond the nation-state, about the structure of postnational constitutionalism and its purposes, and, finally, about the role of courts within that structure and in light of those aspirations. In arguments defending the Court, an influential strand of constitutional theory, in this Essay represented by the intervention of Ulrich Haltern, continues to channel assumptions that constrain thinking about Europe as a postnational legal order. Assuming that political freedom is essentially …

Is International Law Progressive, Cormac Macamhlaigh

Buffalo Law Review

The rise of authoritarian populism in recent years has raised the question of whether international law can be coopted for authoritarian purposes. Tom Ginsburg has recently argued for the rise of what he calls “authoritarian international law” which, he claims, is undermining the hitherto progressive ethos of international law since the foundation of the United Nations. This paper critically examines this category of authoritarian international law. Adopting a Dworkinian interpretive methodology to the question of the normativity of international law, it argues that a putative authoritarian international law is incompatible with the normativity of international law as currently understood. This …

When European State Courts Face Post-Colonial Legality: A Private International Law Approach Inspired By Decolonial Theory, Sandrine Brachotte

Buffalo Law Review

This Essay develops avenues for private international law (PIL) to deal with cases involving the interaction between Western state law and distinctive forms of law that citizens from post-colonial states, especially African states, bring with them to Europe. Laws of the second type, which I call “postcolonial legality,” incorporate both traditional forms of legality usually dubbed “religious” and “customary” law along with state law that originates from colonial law. Drawing on some lessons from decolonial theory, I try to apply to this particular context a “less colonial” PIL theory and subsequent PIL rules and reasoning. The argument builds on the …

The Priority Of International Law, Pavlos Eleftheriadis

Buffalo Law Review

What is international law? Any theory of international law must explain both its technical nature and its moral force and must also show how the two come together in practice in order to give it the priority that it claims. For example, the genocide cases before the International Court of Justice exhibit a puzzling dedication to procedure. The Court is invited to examine the war in Gaza strictly on the basis of the Genocide Convention, without assessing any allegations of war crimes or other alleged violations of international law. The reason is a well-known procedural rule—namely that states have to …

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 …