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  • Andrew Lanham, “Protection for Every Class of Citizens”: The New York City Draft Riots of 1863, the Equal Protection Clause, and the Government’s Duty to Protect Civil Rights, 13 UC Irvine L. Rev.(forthcoming 2023).

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  • A Global History of Crime: Antiquity (Adriaan Lanni ed., forthcoming 2023).

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  • Adriaan Lanni, Enforcement in Classical Athens, in 1 A Global History of Crime: Antiquity (Adriaan Lanni ed., forthcoming 2023).

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    Over the past three decades, the Supreme Court has led a historicist revolution in equity jurisprudence. In a series of decisions known as the “new equity” cases, the Court has sought to limit federal equitable remedies to the forms of relief typically issued by the English Court of Chancery at the Founding. It has read this stringent limitation into various federal statutes that refer to equity—from ERISA to the Judiciary Act. But these cases miss the mark on their own quasi-originalist terms. By focusing on statutes as the basis for the judiciary’s power to grant equitable relief, the Court has overlooked the underlying source of that power—the provision of Article III that extends “the judicial Power” to cases in “Equity.” This Article uncovers federal equity’s constitutional source. Applying the Supreme Court’s historically-inflected methodology, it argues that “the judicial Power” in “Equity” is best understood as vesting the federal courts with inherent power to grant equitable relief. That power is coextensive with the remedial authority of the Founding-era English Chancellor. Put simply, Article III empowers the courts to apply the system of equitable remedies that was administered by the Court of Chancery in 1789 as the baseline of federal equity power. Thus, absent express Congressional action altering this system (which is rare), it is Article III itself—not federal statutes—that supplies authority for and defines the limits of federal equity. Returning equity to its constitutional source suggests that the judiciary has greater leeway to develop the federal system of equitable remedies than the Court’s time-bound new equity cases seem to permit. To be sure, the remedial power incorporated by Article III was not illimitably flexible. Founding-era Chancellors were bound by settled rules from which they did not depart absent legislative authorization. But nor was it fixed in time. Chancery could elaborate the system of equitable remedies in a gradual, accretive, precedent-based way. Article III vests an equivalent power in the federal courts. By ignoring this power and instead tying federal equity to particular statutes, the Court has, in the name of fidelity to history, adopted an ahistorical, cramped understanding of the federal equity power.

  • Adriaan Lanni, Introduction: Ancient Approaches to Crime, in 1 A Global History of Crime (Adriaan Lanni ed., forthcoming 2023).

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  • Adriaan Lanni, Meeting the Challenges of Scaling Up Restorative Justice in the United States, in Restorative Justice at a Crossroads: Dilemmas of Institutionalization (forthcoming).

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  • Adriaan Lanni, Erin V. Freeborn & Lucas Wilson, Restorative Justice Intersections with the Legal System in Massachusetts: Criminal Diversion to Programs in Prison, in The International Encyclopedia of Restorative Justice (forthcoming).

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    This Article investigates the time of COVID-19 to test the claims of supporters of stakeholder capitalism (“stakeholderism”). Such supporters advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for stakeholderism and broad expressions of commitment to it from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. Some supporters of stakeholder capitalism argue that corporate leaders should and do give weight to stakeholder interests because delivering value to stakeholders is a major element of corporate purpose. Other supporters maintain that corporate leaders considering a sale of the company should and do seek to benefit stakeholders, because fulfilling implicit promises to do so serves shareholders’ ex ante interest in inducing stakeholder cooperation, arguably essential to corporate success. We find that the evidence is inconsistent with the claims of both views. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced during the COVID pandemic, totaling more than 100 acquisitions with an aggregate consideration exceeding $700 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant post-deal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives to benefit stakeholders only to the extent needed to serve shareholders’ interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings cast substantial doubt on the claims made by supporters of stakeholder capitalism. Those who seriously care about corporations’ external effects on shareholders should not harbor illusory hopes that corporate leaders would protect stakeholder interests on their own. Instead, they should concentrate their efforts on securing governmental interventions (such as carbon taxes and employee protection policies) that could truly protect stakeholders.

  • Adriaan Lanni, The Debate over the Rule of Law in Classical Athens: A Legal Consciousness Approach, in 1 The Cambridge History of Democracy: From Democratic Beginnings to c. 1350 (Eric Robinson & Valentina Arena eds., forthcoming 2023).

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    Due to the shortcomings of environmental policy, there is growing interest in the role that private actors can play in the fight against climate change. One of the most important theories in this field argues that large asset managers, and in particular large index funds, can and will undertake the role of “climate stewards” and push corporations to reduce their carbon footprint. This “portfolio primacy” theory is based on the view that index fund portfolios mirror the entire market and therefore have strong financial incentives to reduce market-wide threats, such as climate change. But how much can we rely on portfolio primacy to mitigate the effects of climate change? In this Article, I provide a conceptual and empirical assessment of the potential impact of portfolio primacy on climate change mitigation by examining the scope of action, economic incentives, and fiduciary conflicts of index fund managers. The analysis reveals three major limits, each reinforcing the others, that undermine the promise of portfolio primacy. First, the potential scope of index fund stewardship is narrow, as most companies around the world, including most carbon emitters, are private, controlled by state governments or private shareholders, or influenced by major blockholders. Second, index funds internalize only a fraction of the social cost of climate change and therefore have very weak incentives to engage in ambitious climate stewardship. Third, index fund managers advise dozens of index funds with conflicting interests with respect to climate mitigation and therefore face serious fiduciary conflicts that would hamper any ambitious mitigation strategy. This analysis shows that portfolio primacy cannot become a powerful tool in the fight against climate change. On the contrary, by creating the misleading impression that index funds will have a significant impact on climate change, portfolio primacy may well reduce political support for climate regulation and thus harm climate progress.

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    Whether or not one sees the Supreme Court’s Dobbs decision as barely concealed theocracy, it fails to provide any coherent legal analysis of why the right to abortion is not protected by the Fourteenth Amendment.

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    Men have utterly failed to protect women so women must take matters into their own hands. This book shows them how. The Bonobo Sisterhood explores the power and potential of female alliances to stop male-on-female violence.

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    Why is a young, ideologically-driven judge with a lifetime appointment to the bench allowed to ignore legal precedents?

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    Archivists regularly contend with a wide range of security threats, including data breaches, inadvertent loss, and legal action by those hoping to make sealed records public. These threats are particularly salient when sensitive materials are donated with delayed-release conditions. Trust in archivists’ ability to enforce such conditions gives donors the confidence to enter into the historical record materials that they might otherwise destroy. But as these materials are increasingly born-digital (and therefore hackable, convenient to exfiltrate en masse, and more easily corrupted), and as governments and private parties become ever more aggressive in their efforts to secure early releases, we must innovate in order to stand still. To compensate for these new dynamics, we propose Strong Dark Archives (SDA), a blended legal and technical protocol for securing delayed-released archival materials among a network of libraries. SDA leverages modern cryptography and institutional agreements to coordinate access-control across multiple accredited archival organizations, providing broad resilience to data breaches, technical failures, and legal process. Through this distributed approach to security, SDA imposes meaningful friction on efforts to force the early disclosure of archival records.

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    Is the constitution ideally "legal" or "political"? "Written" or "unwritten"? How thick or thin are its principles and guarantees? Where does constitutional fidelity fit among liberal political virtues? What of "restraint" in the conduct of judicial constitutional review, or "originalism" in constitutional interpretation? These are questions raised by lawyers in constitutional-democratic societies throughout the world. In Constitutional Essentials: On the Constitutional Theory of Political Liberalism, Michelman not only raises these questions but explains why these debates persist in modern day constitutional democracies. Through the lens of John Rawls' seminal work Political Liberalism, Michelman responds to the problems governments of constitutional-democratic societies face from deep-lying disagreement among citizens. Rawls' suggested one solution: a "constitution," one that included a bill of rights-that all, despite other disagreements, could accept. Michelman explains Rawls' proposal, placing it within a duality of functions -"regulatory" and "justificatory" - for which, he says, lawyers in constitutional-democratic societies typically look to their countries' bodies of constitutional law. A close examination of the constitution-centered proposition on political legitimacy, this book will be valuable reading to academics in the fields of politics, philosophy, and law.

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    Donald Trump tried to delegitimize the legal process at all levels. Sadly, Judge Aileen Cannon's decision played into that narrative.

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    Judge Aileen Cannon’s opinion screams out that she applies more lenient rules to Donald Trump.

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    In the past two years, in 25 US states, bills have been introduced to restrict access to gender-affirming medical care for minors. Some have already become law. We show how these bills, while purporting to “protect” trans youth, are really an assault on their ability, along with their parents’ and physicians’, to make healthcare choices and to receive medically necessary care. We discuss the evidence-based guidelines for the care of these patients, the positions taken by major medical societies against these bills, and the landscape of legal challenges that are being brought against these enacted laws.

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    In its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare. At the same time, antitrust law’s contribution to reducing inequality is subject to substantial diminishing returns.

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    Professor Jennifer Hochschild’s Genomic Politics: How the Revolution in Genomic Science Is Shaping Society is a must-read for anyone interested in where our politics about genetics in America has been and where it is going. It is also an exemplar of how to do mixed-methods social science work: Hochschild combines theory with database searches and coding of congressional acts and social science journal articles, open-ended interviews with authors of leading peer-reviewed articles and other experts (semi-structured with genomic experts),1 and two sets of relatively lengthy online surveys (one administered in 2011 and one in 2017, nicely allowing some opportunity to detect change) to arrive at a much more complete picture than I have seen anywhere in the extensive literature. Part I summarizes the book and highlights its main contributions. Part II engages with three questions on which the book has something to say, but where I think a longer conversation is warranted: (1) What explains the lack of partisan politicization on these topics? (2) How should equality theorists think about obligations of justice that stem from genetic bad luck and the possibility of redistribution? (3) What would it mean to take seriously the critiques of race as a genetic category and what would that mean for equality discourse?

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    Reviewing ♣Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution♣ (2022).

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    Since 2014, viral images of Black people being killed at the hands of the police—Michael Brown, Eric Garner, Breonna Taylor, and many, many others—have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.2 Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives.3 And others have called for abolishing the police altogether.4 It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans—especially poor, Black people. This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.5 The American criminal legal system is unjust and inefficient. But, as we argue in this essay, over-policing is not the problem. In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations. In this country, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.” We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system. Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound. In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here. In the first part of this essay, we outline five comparative facts that contradict much of the prevailing way of thinking about what is distinctive about the American criminal legal system. In the second part, we draw out the normative implications of those facts and make the case for the First World Balance.

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    They’re good for just about everyone, including employees and shareholders as well as overpaid CEOs.

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    In a pre-registered 2 × 2 × 2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. Participating judges received realistic materials and a relatively long period of time (50 min) to decide an auto accident case. We find at best weak evidence that the law matters or that rules constrain more than standards, and no evidence of a sympathy effect. (JEL K00, K13, K40, K41)

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    If Trump or any of the likely Republican nominees win in 2024, they will immediately move to protect those who attempted to overturn the 2020 election

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    Through its "comfort women" framework, the World War II Japanese military extended its licensing regime for domestic prostitution to the brothels next to its overseas bases. That regime imposed strenuous health standards, which the military needed to control the venereal disease that had debilitated its troops in earlier wars. These "comfort stations" recruited their prostitutes (we limit this article to women recruited through Korea and Japan) through variations on the standard indenture contracts that the licensed brothels had used in Korea and Japan. Some women took the jobs because they were tricked by fraudulent recruiters. Some took them under pressure from abusive parents. But the rest seem to have taken the jobs for the money. The notion that the comfort stations were anything else dates from the 1980s. In 1983, a Japanese writer published a memoir in which he claimed to have led a posse of soldiers to Korea and conscripted women at bayonet-point. Soon, several women sued the Japanese government for compensation. The government apologized (the Kono statement), and the U.N. issued two scathing reports. In fact, the Japanese author had made up the story. By the end of the century, historians and journalists (in both Japan and South Korea) had determined that he had fabricated the entire memoir. In the meantime, however, an apparently corrupt organization (its leader is currently on trial for embezzlement) with close ties to North Korea (the leader's husband served prison time for passing documents to a North Korean agent) took control of the comfort-women movement. Steadily, it inflamed the ethno-nationalism within South Korea and stalled rapprochement with Japan. All this took place while North Korea steadily developed its nuclear weapons arsenal. Given the close ties between North Korea and the organization running the comfort women movement, that may be the point. Under pressure from the South Korean left, however, the government continues to launch criminal prosecutions against scholars who point out the genesis of the movement in the fabricated memoir. Readers in the Anglophone world need to realize that scholars who contest the fabricated comfort women story in South Korea face potential prison time for doing so.

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    Nations around the world are facing various crises of ineffective government. Basic governmental functions, including rights-protection and securing material well-being, including education and healthcare, are compromised, leading to declines in general welfare, in enjoyment of rights, and even of democracy itself. This innovative collection, featuring analyses by leaders in the fields of constitutional law and politics, highlights the essential role of effective government in sustaining democratic constitutionalism. The book explores 'effective government' as a right, principle, duty, and interest, situating questions of governance in debates about negative and positive constitutionalism. In addition to providing new conceptual approaches to the connections between rights and governance, the volume also provides novel insights on government institutions, including courts, legislatures, executives, and administrative bodies, as well as the media and political parties. This is an essential volume for anyone interested in constitutionalism, comparative law, governance, democracy, the rule of law, and rights.

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    So far, the evidence of what Trump didn’t do on January 6th holds the strongest potential for making a successful criminal case against him.

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    This Article presents a systematic consideration of how administrative law doctrines apply to banking supervision, an unusual form of administrative practice that rests on an iterative relationship between banks and supervisors. First, it describes the rationales for, and process of, bank supervision. Second, this Article uses recent administrative law arguments lodged by banking interests against key supervisory practices as the springboard for an analysis of why our largely “trans-substantive” administrative law can be problematic in the context of specific mandates given by Congress to administrative agencies. It argues that courts considering how administrative law doctrine applies to agency practices must contemplate more fully the substantive law the underpins the mission and organization of the agency. When these statutory provisions are taken appropriately into account, arguments that supervisory practices are consistent with administrative law requirements are substantially strengthened. Third, this Article demonstrates how even a more tailored application of contemporary administrative law doctrines would miss a critical feature of banking supervision—that it is premised on an ongoing relationship between banks and supervisors. Judicial review of agency action usually focuses on discrete agency actions, thereby eliding this critical fact. As a result, administrative law doctrines such as the “practically binding” test for agency guidance are peculiarly inapposite. Lastly, this Article offers a tentative proposal for shifting the administrative law review of supervisory actions to focus on how banking agency processes manage the iterative nature of the supervisory relationship.

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    Voice-based AI-powered digital assistants, such as Alexa, Siri, and Google Assistant, present an exciting opportunity to translate healthcare from the hospital to the home. But building a digital, medical panopticon can raise many legal and ethical challenges if not designed and implemented thoughtfully. This paper highlights the benefits and explores some of the challenges of using digital assistants to detect early signs of cognitive impairment, focusing on issues such as consent, bycatching, privacy, and regulatory oversight. By using a fictional but plausible near-future hypothetical, we demonstrate why an “ethics-by-design” approach is necessary for consumer-monitoring tools that may be used to identify health concerns for their users.

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    We were lucky last time. A multitude of law-abiding individuals and fortunate events stopped the “quiet” phase of the coup to keep Donald Trump in power. That could well change in 2024.

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    Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

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