Public Law and Legal Theory Commons^™

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms …

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

Can Moral Principles Change?, Joseph Raz

Faculty Scholarship

The paper considers the main arguments against the possibility that basic normative principles can change, and finds them wanting. The principal argument discussed derives from the claim that normative considerations are intelligible, and therefore that they can be explained, and their explanations presuppose the prior existence of basic normative principles. The intelligibility thesis is affirmed but the implication that basic change is impossible is denied. Subsumptive explanations are contrasted with explanations by analogy. Later in the paper, other objections are considered more briefly: that normative properties are queer, that they are unconnected to the rest of reality, and therefore cannot …

Some Legal Realism About Legal Theory, Jeremy Kessler, David Pozen

Faculty Scholarship

This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).

Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad …

The Work Of International Law, Monica Hakimi

Articles

This Article crystallizes and then critiques a prominent view about the role of international law in the global order. The view - what I call the "cooperation thesis" - is that international law serves to help global actors cooperate, specifically by: (1) curbing their disputes, and (2) promoting their shared goals. The cooperation thesis often appears as a positive account of international law; it purports to explain or describe what international law does. But it also has normative force; international law is widely depicted as dysfunctional when it does not satisfy the thesis. In particular, heated or intractable conflict is …

Election Law And The Presidency: An Introduction And Overview, Jerry H. Goldfeder

Fordham Law Review

Americans now fully appreciate that presidential candidates are vying for a majority of the Electoral College votes, rather than the individual votes of constituents. Modern campaigns are organized around this goal, and commentators are focused on this reality. As a result, there has been an increased cry to reform the electoral process. After all, if every other public official in the land is elected by receiving more votes than their competitors, why should the President of the United States be elected in this apparently undemocratic fashion? The process appears even more unusual in that electors are chosen pursuant to state …

Third-Party And Independent Presidential Candidates: The Need For A Runoff Mechanism, Edward B. Foley

Fordham Law Review

Consider what 2016 might have looked like if this better electoral system had been in place. Bloomberg then could have entered the race without risking being a spoiler. In a three-way race—Bloomberg, Clinton, and Trump—Bloomberg might have fizzled out, leaving a two-way race between Clinton and Trump. Since that is essentially how the election ended up anyway, the country would have been no worse off for having had a chance to consider Bloomberg as an alternative. But suppose, however, with Trump’s candidacy spinning out of control in a series of unacceptable comments (as it appeared to do in early August),11 …

Ramshackle Federalism: America’S Archaic And Dysfunctional Presidential Election System, Anthony J. Gaughan

Fordham Law Review

Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.

Reforming The Contested Convention: Rethinking The Presidential Nomination Process, Michael T. Morley

Fordham Law Review

The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and improve the connections among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes to be placed into nomination. Third, …

Local And State Governments Are Taking The Stage When It Is Fda's Curtain Call - Are Local And State Governments' Safety Warnings Preempted By Federal Law?, Melissa M. Card

Journal of Food Law & Policy

Eliminated from fad diets, sworn off by celebrities, and frantically reformulated out of processed foods, added sugars have been deemed the new nutritional scoundrel. Recent studies from the American Heart Association, the World Health Organization, and the American Cancer Association demonstrate that the consumption of added sugar leads to increased risks of obesity, diabetes, heart disease, and gout. While all foods containing added sugar are deemed unhealthy, Sugary-Sweetened Beverages ("SSBs") are said to be especially toxic by the American health community, by virtue of these beverages' being excessively high in added sugar content, low in satiety, and incomplete in compensation …

Will Consumers Be In The "Dark" About Labels On Genetically Engineered And Modified Foods?, Hilary Nat

Journal of Food Law & Policy

In the 1900s, the United States began to sell genetically engineered foods. One of the first genetically engineered foods sold in the United States and approved by the Food and Drug Administration (FDA) was the Flavr Savr tomato. The tomato's genetic structure was modified to prevent softening which allowed it to ripen after being picked. In the United States, statistics demonstrate that 92% of com, 94% of soybeans, and 94% of cotton sold is genetically engineered. In addition, it is estimated that 75% of the processed foods sold in supermarkets around the United States contain ingredients that are products of …

Energy Drink Regulations: Why The Time For More Fda Authority Is Not Ripe And How States Can Protect Children Without Unjustly Infringing On Adult Autonomy, Larry D. Treat

Journal of Food Law & Policy

In December of 2011, Anais Fournier ("Anais"), a fourteen-year-old from Maryland, was at the mall with her friends when she drank a twenty-four ounce Monster energy drink. Within twenty-four hours, Anais consumed a second twenty-four ounce energy drink. Together, the two Monster energy drinks Anais consumed contained around 480 milligrams ("mg") of caffeine. A few hours after the second drink, Anais went into cardiac arrest and later died from cardiac arrhythmia. An autopsy found that caffeine toxicity caused Anais's arrhythmia and impeded her heart's ability to pump blood. As it turns out, Anais suffered from a preexisting heart condition called …

Rethinking Presidential Eligibility, Eugene D. Mazo

Fordham Law Review

Many aspiring American Presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. Although none of these challenges have ever been successful, they have sapped campaigns of valuable resources and posed a threat to several ambitious men. This Article examines several notable presidential eligibility challenges and explains why they have often been unsuccessful. The literature on presidential eligibility traditionally has focused on the Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a President must satisfy before taking office. By contrast, very little of it examines how a challenge to one’s candidacy impacts a …

“Natural Born” Disputes In The 2016 Presidential Election, Derek T. Muller

Fordham Law Review

The 2016 presidential election brought forth new disputes concerning the definition of “natural born Citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Unlike challenges to President Barack Obama’s eligibility, which largely turned on conspiratorial facts, challenges to Cruz’s eligibility turned principally on the law and garnered more serious attention concerning a somewhat cryptic constitutional clause. Understandably, much attention focused on the definition of “natural born citizen” and whether candidates like Cruz qualified. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling …

Does The Constitution Provide More Ballot Access Protection For Presidential Elections Than For U.S. House Elections?, Richard Winger

Fordham Law Review

Both the U.S. Constitution and The Federalist Papers suggest that voters ought to have more freedom to vote for the candidate of their choice for the U.S. House of Representatives than they do for the President or the U.S. Senate. Yet, strangely, for the last thirty-three years, the U.S. Supreme Court and lower courts have ruled that the Constitution gives voters more freedom to vote for the candidate of their choice in presidential elections than in congressional elections. Also, state legislatures, which have been writing ballot access laws since 1888, have passed laws that make it easier for minor-party and …

Time To End Presidential Caucuses, Sean J. Wright

Fordham Law Review

Following the 2016 election cycle, there will be a great opportunity to implement reform. A major change should be to move away from presidential caucuses. They persist with, in the words of John Oliver, “complex, opaque rules.” These complex rules, which include participating in person for over an hour, negatively impacts participation in the electoral process. For example, in 2012, “participation rates in the Republican Party’s caucuses averaged 3 percent.” 3 percent. Compellingly, PolitiFact has observed that “[c]aucuses and delegate math can be incredibly confusing, and the arcane party structures don’t reflect how most people assume presidential selection works.” Yet, …

Amendment Creep, Jonathan L. Marshfield

Michigan Law Review

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …

The Role Of Judicial Discourse In Distorting The Public Inquiry Image: Is The Inquiry Becoming An Endangered Species?, Diana Morokhovets

LLM Theses

The goal is to explore the construction of the Public Inquiry image and its persona via judicial decision-making and legal discourses that are utilized to justify the final product of an inquiry. For instance, while the commissioner is generally equipped with extensive coercive and discretionary powers, there is scarcely any research on why these powers are exercised the way that they are and how (or if) the decisions that are made condition the public image of the inquiry and their ultimate impact on the survival of the institution. Specifically, it will be argued that despite the fact that a judge-commissioner …

Using Proactive Legal Strategies For Corporate Environmental Sustainability, Gerlinde Berger-Walliser, Paul Shrivastava, Adam Sulkowski

Michigan Journal of Environmental & Administrative Law

We argue that proactive law can help organizations be more sustainable. Toward that end, this Article first summarizes proactive law literature as it pertains to corporate sustainability. Next, it examines a series of cases on the pivotal nexus between proactive law and corporate sustainability. It then advances novel propositions that connect proactive law to central organizational design elements. The discussion traces further implications and suggests fruitful avenues for research and ways of using proactive law for firms to become more sustainable.

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Fordham Law Review

This Article highlights just a few areas of law as illustrations of the Second Circuit’s jurisprudence in dealing with claims of marginalized and subordinated individuals and groups. In the area of civil rights, this Article focuses on sexual harassment law and prisoners’ rights. In the area of public benefits, this Article focuses on public assistance and the disability benefit programs of the Social Security Act.