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Publication Types
Categories
Sarah A. Seo, The New Public, 125 Yale L.J. 1616 (2016)
Categories:
Legal Profession
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Administrative Law & Agencies
,
Legal History
Type: Article
Abstract
By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history of criminal procedure, putting some limits on the police’s discretionary power may require partitioning the enforcement of traffic laws from the investigation of crime.
Laurence H. Tribe, The risk of a coup in the next US election is greater now than it ever was under Trump, Guardian, Jan. 3, 2022.
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Elections & Voting
Type: Other
Abstract
Republicans are busy undermining the next election. But giving up on democracy isn’t an option. We must fight back, and here’s how.
Sanjit Dhami & Cass R. Sunstein, Bounded Rationality: Heuristics, Judgment, and Public Policy (forthcoming 2022).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Economics
,
Law & Behavioral Sciences
Type: Book
Abstract
Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections. After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.”
Adrian Vermeule, Common Good Constitutionalism (forthcoming 2022).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Book
Abstract
The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism." This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.
Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. (forthcoming 2022).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
,
Civil Rights
,
Supreme Court of the United States
,
Labor Law
,
Employment Discrimination
Type: Article
Abstract
Last year’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Supreme Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the panoply of disparate-treatment questions for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions but transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of a disparate-treatment statute—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.
Salma Waheedi, Islam in the Legal Order of Saudi Arabia and Kuwait: Two Models of Constitutionalizing Shari’a, in Mapping Constitutional Control in the MENA Region (Konrad Adenauer Stiftung, Rule of Law Program Middle East and North Africa, forthcoming 2022).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Islamic Law
,
Foreign Law
,
International Law
,
Comparative Law
Type: Book
Salma Waheedi, Litigating Women’s Rights in Arab Gulf Monarchial Systems: the Kuwait and Bahrain Constitutional Courts as Case Studies, 34 Arab L.Q. (Special Edition on Authoritarianism and the Law, Nathan Broan & Mai T. El-Sadany eds., forthcoming 2022).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Gender & Sexuality
,
Discrimination
,
Islamic Law
,
Foreign Law
,
Human Rights Law
Type: Article
Christine A. Desan, Money's Design Elements: Debt, Liquidity, and the Pledge of Value from Medieval Coin to Modern "Repo" (Harvard Pub. L. Working Paper No. 21-31) (Banking Fin. L. Rev. v. 38, forthcoming 2022).
Categories:
Banking & Finance
Type: Other
Abstract
Across the ages, moneys exhibit a recurring set of design elements: they are made of debt; that debt is specifically fashioned to create liquidity; and the debt medium that results comes with a pledge of value (commonly collateral, convertibility, a commitment of public faith, and/or insurance) to enhance its credibility. While those design elements appear again and again, they vary greatly in form. Debt, for example, can be structured as a straightforward liability or issued by agents (e.g., a central bank acting for a government). Every difference in design changes the dynamics of the medium and the way people treat it. Every difference in design thus affects exchange, its societal context, and how value travels. Like the law of payments, the legal design of money shapes the economy itself. [This essay is written as part of a festschrift for Professor Benjamin Geva.]
Stephen E. Sachs, Originalism: Standard and Procedure, Harv. L. Rev. (forthcoming 2022).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a *standard*, not a *decision procedure*. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.Distinguishing standards from decision procedures explains how originalists can tolerate substantial uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.It would be very nice if the correct constitutional theory gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.
Mason Marks & I. Glenn Cohen, Patents on Psychedelics: The Next Legal Battlefront of Drug Development, 135 Harv. L. Rev. F. (forthcoming 2022).
Categories:
Health Care
,
Property Law
Sub-Categories:
Food & Drug Law
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
In the past few decades, pioneering research has rekindled interest in the therapeutic use of psychedelic substances such as psilocybin, ibogaine, and dimethyltryptamine (DMT). Indigenous communities have used them for centuries, and researchers studied them in the 1950s and 60s. However, most psychedelics were banned in the 70s, when President Nixon launched the U.S. war on drugs. Fifty years later, rising rates of mental illness, substance use, and suicide are prompting researchers to revisit psychedelics, and some have gained permission to study them in limited quantities. Clinical trials are producing promising results, creating enthusiasm for commercializing and patenting psychedelics. This Essay analyzes the ethical, legal, and social implications of patenting these controversial substances. Patents on psychedelics raise unique concerns associated with their unusual qualities, history, and regulation. Because they were criminalized for decades, the Patent Office lacks personnel with expertise in the field, increasing the likelihood of granting meritless psychedelic patents. Moreover, because Indigenous communities pioneered many aspects of modern psychedelic therapies, their patenting by Western corporations may promote biopiracy, the exploitation of Indigenous knowledge without compensation. Importantly, control of psychedelics by a small number of companies may stifle innovation and reduce access to these therapies. The Essay presents proposals to reduce the risk of biopiracy and the issuance of meritless psychedelic patents. Potential solutions include the implementation of psychedelic patent pledges, the creation of psychedelic prior art repositories, and the tightening of patentability requirements for novel drug therapies. The Essay concludes that ultimately, due to their importance to the advancement of science and public health, psychedelics are appropriately viewed as research tools, eligible only for limited patent protection.
Seth Davis, Eric Biber & Elena Kempf, Persisting Sovereignties, 170 U. Pa. L. Rev. (forthcoming 2022)
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and the states of the Union. Then, as today, American Indian tribes persisted as self-governing peoples with ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships. The United States Supreme Court confronted that debate in McGirt v. Oklahoma when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary, including from federal lawmakers who share Justice Gorsuch’s commitment to originalism. But the original story of federal Indian law supports the persistence of tribal sovereignty. Through its treaty practice, and opinions of its Supreme Court, the United States recognized Indian tribes as political communities whose preconstitutional sovereignty persisted despite their incorporation within U.S. territory. According to the Marshall Court, tribes were “states” and “nations” with whom the United States had formed political relationships. These terms, the Court explained, had a “well-understood meaning” under the law of nations and applied to tribes as they applied “to the other nations of the earth.” This Article explores the original public meaning of those terms as they applied to Indian tribes through the first comprehensive analysis of the international law commentary cited by the Marshall Court as well as historical examples of shared sovereignty that were familiar to lawyers during the early Republic. In particular, this Article explores two consequences of tribes’ status as “states” and “nations” under international law during the early Republic. First, it provides an originalist foundation for the Indian canon of construction’s rule that tribal sovereignty is preserved unless expressly surrendered. Like states under international law, tribes retained whatever measure of sovereignty they did not expressly surrender by agreement. Accordingly, a court interpreting an Indian treaty must construe ambiguous terms to retain tribal sovereignty. Today, this rule of interpretation is known as the Indian canon of construction and is thought to be peculiar to federal Indian law. To the contrary, however, the Indian canon’s foundations include generally accepted principles of the law of nations at the time of the Founding. Second, this understanding of Indian tribes as “states” implies that the sovereignty of tribes is not divested by their incorporation within the United States and persists despite periods in which federal and state governments have prevented its exercise. This principle, which has important implications for contemporary debates in federal Indian law, not only justifies the Court’s recognition of tribal persistence in McGirt, but also offers a way for thinking about the future story of divided sovereignty in the United States.
Gregory Alexander, Lior Jacob Strahilevitz & Maureen E. Brady, PracticePerfect Property (Wolters Kluwer forthcoming 2022).
Categories:
Property Law
Type: Book
Joseph W. Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Penalver, Property Law: Rules, Policies, and Practices 8th ed. (Aspen Wolters Kluwer 2022).
Categories:
Property Law
Type: Book
Thomas W. Merrill, Henry E. Smith & Maureen E. Brady, Property: Principles and Policies, 4th. (West Acad. forthcoming 2022).
Categories:
Property Law
Type: Book
Seth Davis, Responsibility Sharing within Borders, 110 Cal L. Rev. (forthcoming 2022)
Categories:
Government & Politics
Type: Article
David Rosenberg & Adeyemi Adediran, Strengthening the Power of Healthcare Insurers to Regulate Medical Device Risk, in The Future of Medical Device Regulation: Innovation and Protection (I. Glenn Cohen, Timo Mindsen, W. Nicholson Price II, Christopher Robertson & Carmel Shachar, eds. forthcoming 2022).
Categories:
Health Care
,
Civil Practice & Procedure
,
Technology & Law
Sub-Categories:
Torts - Product Liability
,
Health Law & Policy
,
Medical Technology
Type: Book
Abstract
This paper considers harnessing the market forces uniquely exerted by private healthcare insurers (insurers) to reduce medical device risks. Insurers regulatory power derives from their market-gatekeeping coverage and purchase decisions that determine the economic fate of all FDA approved devices, payment of injured insured-patient medical and other expenses, and, based on inflow of insured-patient payment requests, comprehensive market monitoring for product-related accidents, including early signs of new and increasing risks. Insurers thus can generate social regulatory benefits by providing FDA with current, reliable postmarket data on product risk and efficacy, including “first alert” warnings of emerging risks. More generally, by accounting for the implicit price of accidents, insurers coverage and purchase decisions can deter marketing of unreasonably dangerous devices and promote more medically productive use of products. However, insurers lack sufficient financial incentive to exercise their regulatory power for maximum social benefit. To correct the market defects that cause this problem, we propose two simple and virtually costless reforms: (1) require insurers to report medical device accidents to the FDA; and (2) replace state tort law with a federal rule of strict manufacturer liability that bases recoveries on proof of causation alone, pays damages directly and fully to the US Treasury, and is litigated on referral from the FDA by the Civil Division of the Department of Justice directly or by auctioning claims to private attorneys.
Hrefna D. Gunnarsdottir, I. Glenn Cohen, Timo Minssen & Sara Gerke, The Ethics and Laws of Medical Big Data, in Cambridge Handbook of Information Technology, Life Sciences and Human Rights, (Marcello Ienca, O. Pollicino, L. Liguori, R. Andorno & E. Stefanini, eds., forthcoming 2022).
Categories:
Health Care
,
Technology & Law
,
Legal Profession
,
Property Law
Sub-Categories:
Bioethics
,
Legal Ethics
,
Information Privacy & Security
,
Medical Technology
Type: Book
Abstract
The COVID-19 pandemic has highlighted that leveraging medical big data can help to better predict and control outbreaks from the outset. However, there are still challenges to overcome in the 21st century to efficiently use medical big data, promote innovation and public health activities and, at the same time, adequately protect individuals’ privacy. The metaphor that property is a “bundle of sticks”, each representing a different right, applies equally to medical big data. Understanding medical big data in this way raises a number of questions, including: Who has the right to make money off its buying and selling, or is it inalienable? When does medical big data become sufficiently stripped of identifiers that the rights of an individual concerning the data disappear? How have different regimes such as the General Data Protection Regulation in Europe and the Health Insurance Portability and Accountability Act in the US answered these questions differently? In this chapter, we will discuss three topics: (1) privacy and data sharing, (2) informed consent, and (3) ownership. We will identify and examine ethical and legal challenges and make suggestions on how to address them. In our discussion of each of the topics, we will also give examples related to the use of medical big data during the COVID-19 pandemic, though the issues we raise extend far beyond it.
Einer Elhauge, The Inevitability and Desirability of the Corporate Discretion to Advance Stakeholder Interests Cornell L. Rev. (forthcoming 2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Article
Abstract
Recent work has argued that a corporate discretion to advance the interests of stakeholders is illusory and undesirable. This article argues that, to the contrary, such discretion is both inevitable and desirable.
Mark Tushnet, The Politics of Constitution-Making, in Elgar Handbook on the Politics of Constitutional Law (Mark Tushnet & Dimitry Kochenov eds., forthcoming 2022).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
At the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order. This essay, a contribution to a handbook on the politics of constitutional law, seeks to identify some more granular processes. Section 1 describes three prominent approaches to theorizing about the politics of constitution-making Ackerman’s theory of “constitutional moments”; Elster’s identification of “upstream” and “downstream” constraints on constitution-making; and studies of post-conflict, post-crisis, and “imposed” constitution making, with a brief discussion of constitution-making in “normal” times. Section 3 offers a sequential account of the politics of constitution-making, beginning with the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the essay considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the “afterlife” of constitutional processes that do not produce a new ratified constitution.
Gregory Elinson & Jonathan Gould, The Politics of Deference, 75 Vanderbilt L.R. (forthcoming 2022).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Like so much else in our present politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential and congressional archives, statements by interest groups, and partisan media sources. It recounts how the politics of deference have varied over time, even though the issue is often framed in terms that resist evolutionary analysis. As the administrative state grew in the 1970s, conservatives in Congress sought to rein in deference, while liberals defended it. These positions reversed in the 1980s, as the Reagan Administration relied on flexible readings of statutes in service of its deregulatory efforts, including in the Chevron case itself. After a period of political détente, the 2010s witnessed a resurgence of conservative opposition and liberal support for Chevron, driven largely by the ascendance of libertarian interests in the Republican Party and the central role of administrative policymaking to contemporary Democratic Party agendas. The Article then develops a framework for understanding the shifting politics of deference. It argues that the politics of deference are the politics of regulation: for nearly a half-century, partisans and interest groups have viewed doctrinal debates as inexorably tied to interests in policy outcomes. Positions about Chevron have varied based on which party controls the presidency and the ideological makeup of the federal courts. But the parties are also asymmetrically reliant on the administrative state, and thus on judicial deference. Liberals depend on deference to advance their regulatory goals in the face of an often-gridlocked Congress, while conservatives have many paths to accomplishing their deregulatory ends. The conservative turn against the so-called “deep state” and Chevron’s non-application in areas where conservatives most favor deference (such as national security) further exacerbate the partisan split on the doctrine. And Chevron has become a rhetorical cudgel in broader partisan debates about the legality and legitimacy of the administrative state as a whole. Unless these dynamics change, Chevron deference will continue to have a political valence. And so long as the doctrine is understood to create winners and losers, partisans and interest groups will rightly see high stakes in ensuring its survival or hastening its demise.
Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 133 Yale L. J. (forthcoming 2022).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Constitutional History
,
Separation of Powers
,
Executive Office
,
Legal History
Type: Article
Abstract
Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution. That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.
Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries, (Shyamkrishna Balganesh, Ted M. Sichelman & Henry E. Smith eds., forthcoming 2022).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Civil Rights
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Legal History
,
Biography & Tribute
Type: Book
Tomiko Brown-Nagin, The power of eye-opening images, CNN.com, Dec. 16, 2021.
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Law & Social Change
Type: Other
Dennis Aftergut and Laurence H. Tribe, Last Week’s Texas Ruling Will Prove to Be a Wipeout for Abortion Rights, Slate, Dec. 13, 2021.
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Genetics & Reproduction
Type: Article
Lawrence Lessig, Why the US Is a Failed Democratic State, N.Y. Rev., Dec. 10, 2021.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Executive Office
,
Congress & Legislation
,
Corruption
,
Elections & Voting
Type: Article
Abstract
The self-governing republic works only if it expresses the will of the majority. But one party is now committed to minoritarian rule by any means.
Nancy Gertner & Lawrence H. Tribe, The Supreme Court isn’t well. The only hope for a cure is more justices., Wash. Po., Dec. 9, 2021.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Jeannie Suk Gersen, The Mississippi Abortion Case and the Fragile Legitimacy of the Supreme Court, NewYorker.com (Dec. 4, 2021).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Supreme Court of the United States
,
Statutory Interpretation
,
Genetics & Reproduction
Type: Other
Abstract
Dobbs v. Jackson Women’s Health Organization is an open challenge to the Court’s authority, and perhaps broadly reflects a spirit of legal self-help that is running through the land.
Nancy Gertner, The Stench at the Supreme Court, The Boston Globe (Dec. 2, 2021).
Categories:
Government & Politics
,
Constitutional Law
,
Health Care
Sub-Categories:
Fourteenth Amendment
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: News
Abstract
The science on which Roe v. Wade was based has not changed. What has changed is the court's membership and their originalist interpretation of the Constitution.
Louis Kaplow, Horizontal Merger Analysis, 79 Int'l J. Indus. Org. (Dec. 2021).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Empirical Legal Studies
,
Law & Economics
Type: Article
Abstract
Economic analysis of competition regulation is most developed in the domain of horizontal mergers, and modern agency guidelines reflect a substantial consensus on the appropriate template for merger assessment. Nevertheless, official protocols are understood to rest on a problematic market definition exercise, to use HHIs and HHIs in ways that conflict with standard models, and more broadly to diverge with how economic analysis of proposed mergers should be and often is conducted. These gaps, unfortunately, are more consequential than is generally appreciated. Moreover, additional unrecognized errors and omissions are at least as important: analysis of efficiencies, which are thought to justify a permissive approach, fails to draw on the most relevant fields of economics; entry is often a misanalyzed afterthought; official information collection and decision protocols violate basic tenets of decision analysis; and single-sector, partial equilibrium analysis is employed despite the presence of substantial distortions (many due to imperfect competition) in many sectors of the economy. This article elaborates these deficiencies, offers preliminary analysis of how they can best be addressed, and identifies priorities for further research.
Cass R. Sunstein, On the Evaluation of Behaviorally Informed Interventions, (Dec. 1, 2021).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Social Welfare Law
,
Law & Behavioral Sciences
Type: Other
Abstract
In evaluating behaviorally informed interventions, policymakers should consider both their welfare effects (including, for example, their potentially negative effects on subjective well-being) and their effects on distributive justice (including, for example, their potentially negative effects on those at the bottom of the economic ladder). Four specific questions are relevant: (1) What are the aggregate effects on social welfare? For purposes of evaluation, it is tempting to focus on increases in participation rates or on cost-effectiveness. The welfare question is much more important, though it raises serious normative, conceptual, and empirical challenges. (2) Who is likely to be helped and who is likely to be hurt? This is a plea for a distributional analysis of the effects of behaviorally informed interventions. (3) What are the expected effects on the least well-off? It is important to ask whether the relevant interventions help or hurt those who have the least, defined in terms of welfare, a point that is connected with “prioritarianism.” (4) Do the benefits to those who are helped exceed the costs to those who are hurt? If the gainers gain more than the losers lose, we have a strong point in favor of the intervention. But the point might not be decisive if, for example, the gainers are well-off to begin with, and the losers are not. The four questions are meant as an objection to efforts to evaluate behaviorally informed interventions in terms of (for example) effects on participation rates; as a plea for analysis of the distributive effects of such interventions; and as a plea for specification and investigation of their welfare effects.
Charles Fried, I Once Urged the Supreme Court to Overturn Roe. I've Changed My Mind., N.Y. Times, Nov. 30, 2021.
Categories:
Government & Politics
,
Constitutional Law
,
Health Care
Sub-Categories:
Fourteenth Amendment
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: News
Ronald S. Sullivan, Jr., The Rittenhouse Trial: A Legal Scholar Responds, Quillette, Nov. 23, 2021.
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Second Amendment
,
Criminal Defense
,
Criminal Evidence
,
Jury Trials
Type: Other
Ronald Sullivan, Rittenhouse Verdict Flies in the Face of Legal Standards for Self-Defense, The Conversation (Nov. 19, 2021).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Criminal Defense
,
Jury Trials
,
Sentencing & Punishment
Type: Other
Kenneth W. Mack, What Fannie Lou Hamer Can Teach Today’s Activists, Wash. Post., Nov. 19, 2021.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Civil Rights
,
Race & Ethnicity
,
Discrimination
,
Elections & Voting
Type: News
Abstract
Book review of Until I Am Free: Fannie Lou Hamer’s Enduring Message to America by Keisha N. Blain.
Jill Lepore, The Elephant Who Could Be a Person, The Atlantic (Nov. 16, 2021).
Categories:
Environmental Law
Sub-Categories:
Animal Law
Type: Other
Abstract
The most important animal-rights case of the 21st century revolves around an unlikely subject.
Stephen E. Sachs, Originalism and the Result in Dobbs, Volokh Conspiracy (Nov. 14, 2021).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Statutory Interpretation
Type: Other
Abstract
Would the outcome in Dobbs put originalism in doubt?
Laurence H. Tribe, Trump Adviser Steve Bannon's Indictment and Arrest Are a Win for the Rule of Law, NBC News (Nov. 15, 2021).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Congress & Legislation
Type: Other
Cass R. Sunstein, 'Get Drunk'!: Baudelaire's Defiant Liberalism, (Nov. 12, 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Law & Political Theory
,
Legal Theory & Philosophy
Type: Other
Abstract
We live in a period in which liberalism is under considerable pressure.Can poems be liberal? Baudelaire’s Enivrez-Vous captures something essential about the most appealing forms of liberalism, and about its underlying spirit (captured, in different ways, by John Stuart Mill, Walt Whitman, and Bob Dylan as well): its insistence on freedom of choice, on the diversity of tastes and preferences, and on human agency. The poem is liberal in its exuberance – its pleasure in its own edginess, its defiance, its sheer rebelliousness, its sense of mischief, its implicit laughter, its love of life and what it has to offer. It is the opposite of dutiful. It is far more exuberant than Mill’s On Liberty, but it is exuberant in the same way.
Nikolas Bowie, Antidemocracy, 135 Harv. L. Rev. 160 (2021).
Categories:
Labor & Employment
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Politics & Political Theory
,
Labor Law
Type: Article
Abstract
I begin by defining democracy and antidemocracy. I then describe the farmworkers’ difficulty in cultivating democracy, the antidemocratic potential of Cedar Point, and the longstanding sources of antidemocracy that protect the Supreme Court’s discretion. I then draw a lesson from the farmworkers’ story for how this antidemocracy can be overcome. In short, for democracy to exist anywhere, it must exist everywhere: in our workplaces, our communities, our courts, and our constitutions.
Gerald L. Neuman, Coming to Grips with Populism After Trump, OpenGlobalRights (Nov. 10, 2021).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Other
Abstract
Returning to the rule of law and fortifying democracy in the U.S. will best be accomplished by reemphasizing the country’s own democratic and egalitarian values, and by vindicating truthfulness after four years of Trumpian fraud.
Nancy Gertner & Dean Strang, America Should Not Tolerate Vigilante Behavior, Chi. Sun-Times, Nov. 8, 2021.
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Jury Trials
,
Criminal Defense
,
Criminal Evidence
Type: News
Abstract
In the trials of Kyle Rittenhouse in Wisconsin and the men who killed Ahmaud Arbery in Georgia, a claim of self-defense is being expanded into a pass to use deadly force against someone the defendant simply suspects of doing something unlawful. That’s not American law.
Noah Feldman, Is the Supreme Court on Its Way to Becoming a Conservative Bastion?, N.Y. Times, Nov. 8, 2021.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Abstract
A review of Justice On the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court by Linda Greenhouse
Hal Scott & John Gulliver, Ron Wyden’s Plan to Gut Capital Markets, Wall St. J., Nov. 8, 2021 at A17.
Categories:
Corporate Law & Securities
,
Taxation
Sub-Categories:
Corporate Law
,
Corporate Governance
,
Taxation - Personal Income
Type: Other
Tali Sharot, Max Rollwage, Cass R. Sunstein & Stephen Fleming, Why and when beliefs change: A multi-attribute value-based decision problem, (Nov. 4, 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Other
Abstract
Why people do or do not change their beliefs has been a long-standing puzzle. Sometimes people hold onto false beliefs despite ample contradictory evidence; sometimes they change their beliefs without sufficient reason. Here, we propose that the utility of a belief is derived from the potential outcomes of holding it. Outcomes can be internal (e.g., positive/negative feelings) or external (e.g., material gain/loss), and only some are dependent on belief accuracy. Belief change can then be understood as an economic transaction, in which the multidimensional utility of the old belief is compared against that of the new belief. Change will occur when potential outcomes alter across attributes, for example due to changing environments, or when certain outcomes are made more or less salient.
Noah Feldman, This Is the Story of How Lincoln Broke the U.S. Constitution, N.Y. Times, Nov. 2, 2021.
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Race & Ethnicity
,
Law & Humanities
,
Law & Social Change
Type: News
Sabrineh Ardalan, Refugee Eligibility: Challenging Stereotypes and Reviving the ‘Benefit of the Doubt’, Rethinking Refuge (Updated Nov. 15, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Immigration Law
,
Refugee & Asylum Law
Type: Other
Abstract
It is time to rethink the evidence so often submitted and relied upon in asylum claims, to return to a core principle of refugee law – the need to afford a
Jerome Hergueux, Emeric Henry, Yochai Benkler & Yann Algan, Social Exchange and the Reciprocity Roller Coaster: Evidence from the Life and Death of Virtual Teams, Org. Sci. (2021).
Categories:
Corporate Law & Securities
Type: Article
Abstract
Organizations are riddled with cooperation problems, that is, instances in which workers need to voluntarily exert effort to achieve efficient collective outcomes. To sustain high levels of cooperation, the experimental literature demonstrates the centrality of reciprocal preferences but has also overlooked some of its negative consequences. In this paper, we ran lab-in-the-field experiments in the context of open-source software development teams to provide the first field evidence that highly reciprocating groups are not necessarily more successful in practice. Instead, the relationship between high reciprocity and performance can be more accurately described as U-shaped. Highly reciprocal teams are generally more likely to fail and only outperform other teams conditional on survival. We use the dynamic structure of our data on field contributions to demonstrate the underlying theoretical mechanism. Reciprocal preferences work as a catalyst at the team level: they reinforce the cooperative equilibrium in good times but also make it harder to recover from a negative signal (the project dies). Our results call into question the idea that strong reciprocity can shield organizations from cooperation breakdowns. Instead, cooperation needs to be dynamically managed through relational contracts.
Cornelia Betsch, Philipp Sprengholz & Cass R. Sunstein, Health, Technology, and Genre Preferences: A Preliminary Investigation, (Oct. 26, 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Other
Abstract
Cultivation theory assumes that frequent exposure to certain media can lead people to perceive the real world through the lens of their preferred media. This led to the research question of whether fans of science fiction who are accustomed to seeing problem solving based on science and technology are prone to accept science- and technology-based interventions to curb the spread of the COVID-19 pandemic. An exploratory survey and a preregistered experiment (N = 1,983) found that participants who liked science fiction were more likely to trust science and to accept protective measures against COVID-19. This effect was especially visible for a Corona mobile-phone app but also extended to other behaviors. The effect was stronger for those whose genre preference was activated just before the behavioral intentions were assessed. Harnessing these preferences could improve health communication and may be useful in solving health crises, such as pandemics or the climate crisis.
Cass R. Sunstein, Analogical Reasoning, (Oct. 18, 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Other
Abstract
In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A—the “source” case—has certain characteristics; call them x, y, and z. (2) Fact pattern B—the “target” case—has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.
Laurence H. Tribe, Erwin Chemerinsky, Jeffrey Abramson & Dennis Aftergut, The courts have a new chance to block Texas's abortion law. They must take it, The Guardian (Oct. 17, 2021).
Categories:
Constitutional Law
,
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
Gender & Sexuality
,
Bioethics
,
Genetics & Reproduction
Type: Other
Abstract
SB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts.
Jody Freeman, The Untapped Potential of the Congressional Review Act, Harv. J. on Legis. (forthcoming) (Harv. Pub. L. Working Paper No. 21-28, Oct. 7, 2021).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
Type: Article
Abstract
The Congressional Review Act (CRA) authorizes fast-track procedures for resolutions disapproving agency rules. The near-universal assumption is that the CRA is relevant only when a new President seeks, with the support of Congress, to cancel regulations promulgated during the previous administration. Yet the CRA has substantially greater unrealized potential to reverse adverse judicial rulings, or, more ambitiously, to entrench preferred statutory interpretations. When the agency, the President, and congressional majorities agree on the correct reading of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step process: First, the agency promulgates an interpretive rule construing the statute to mean the opposite of what the agency actually favors—for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. (In the case of an adverse judicial ruling on the statute’s meaning, the agency’s rule could simply restate the court’s reading of the statute.) Next, Congress and the President use the CRA to disapprove that interpretive rule—thus establishing, via a formal exercise of legislative power, that the statute has the meaning the agency rule rejected. This strategy would be a lawful way for the executive and legislative branches to override judicial rulings regarding the meaning of the agency’s authorizing statute, and more generally to clarify or alter statutory law in a manner that bypasses the filibuster and other legislative roadblocks.
Jody Freeman & Matthew Stephenson, The Untapped Potential of the Congressional Review Act‬, (Oct. 7, 2021).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
Type: Other
Abstract
‪J Freeman, M Stephenson‬, ‪Available at SSRN 3895427, 2021‬
Naz K. Modirzadeh & Dustin A. Lewis, Humanitarian Values in a Counterterrorism Era, International Review of the Red Cross (Oct. 6, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Humanitarian Law
Type: Article
Abstract
In this opinion note, we explore ways to understand the contemporary encounters between a growing global counterterrorism architecture and impartial humanitarian activities while critically assessing our own role in shaping responses to those encounters. Humbled by a decade of experience in this area, we aim to explain how counterterrorism concerns have been elevated over the humanitarian imperative and to offer potential avenues to secure greater respect for impartial humanitarian activities.
Bob Bauer & Jack Goldsmith, Congress Should Seize This Chance to Get Its Power Back, Politico (Oct. 5, 2021),
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Separation of Powers
Type: Other
Abstract
A new bill curbing presidential powers addresses problems that arise during Republican and Democratic presidencies. Members of Congress in both parties should embrace its reforms.
Bob Bauer & Jack Goldsmith, Inspector General Reform on the Table, Lawfare (Oct. 5, 2021),
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Congress & Legislation
Type: Other
Abstract
At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general who now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Governmental Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them and assesses the others.
Allen Ferrell, Alberto Manconi, Ekaterina Neretina, William Powley & Luc Renneboog, Corporate Litigation, Governance, and the Role of Law Firms (Oct. 04, 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
Type: Other
Abstract
Corporations pay out large settlements to their shareholders and other plaintiffs as compensation for corporate governance failures. Hired to achieve and improve settlements, plaintiff law firms can play a central role in litigation outcomes. We provide first systematic evidence of their performance. In our novel comprehensive dataset, top plaintiff law firms (“stars”) capture 48% larger settlements. Defendant corporations’ litigation insurance coverage is also 39% larger, suggesting assortative matching of stars with lawsuits that have ex-ante large expected payoffs. Stars’ visibility and information advantage vis-à-vis less sophisticated plaintiffs help sustain their market share.
Nancy Gertner, Do Supreme Court justices have competing judicial philosophies or are they just partisan hacks?, The Boston Globe (Oct. 4, 2021).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Supreme Court of the United States
Type: News
Abstract
Stripping away wholesale respect for precedent in many areas and at breakneck speed raises profound questions.
Randall L. Kennedy, Is It Ever OK to Enunciate a Slur in the Classroom?, Chron. Higher Educ. Oct. 1, 2021.
Categories:
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Randall L. Kennedy, The Right-Wing Attack on Racial Justice Talk, 32 Am. Prospect 1 (Oct. 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Race & Ethnicity
Type: Article
Abstract
More from Randall Kennedy Among the prominent commentators whose ideas are under attack are Nikole Hannah-Jones, the journalist who was the main figure behind The New York Times’ 1619 Project; Kimberlé Crenshaw, the Columbia University and UCLA law professor who is the most sophisticated and articulate expositor and representative of critical race theory (CRT); and ibram Kendi, director of the Center for Antiracist Research at Boston University. According to Rufo, "critical race theory is the perfect villain." According to Sen. Ted Cruz, the anti-CRT campaign is an uprising by ordinary, patriotic Americans who are learning belatedly that their local schools, infiltrated by CRT thinking, are teaching that "America is fundamentally racist, that all white people are racists... [and] that whites and blacks hate each other and have to hate each other." According to Sen. Josh Hawley, "Critical Race Theory has no business being taught in Missouri [or presumably any other] classrooms."
Jeannie Suk Gersen, What if Trigger Warnings Don’t Work?, NewYorker.com (Sept. 28, 2021).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Abstract
New psychological research suggests that trigger warnings do not reduce negative reactions to disturbing material—and may even increase them.
Laurence H. Tribe, Neil H. Buchanan & Michael C. Dorf, How to Prevent the Legal Strategy that Nearly Undid the Last Election from Ending Democracy, The Boston Globe (Sept. 27, 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Executive Office
,
Congress & Legislation
Type: News
Abstract
Congress needs to act and the executive branch needs to step up.
Jill Lepore, When Black History Is Unearthed, Who Gets to Speak for the Dead?, The New Yorker (Sept. 27, 2021).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
Type: Other
Abstract
Efforts to rescue African American burial grounds and remains have exposed deep conflicts over inheritance and representation.
Jonathan Zittrain, The Inexorable Push For Infrastructure Moderation, Techdirt: The Tech Policy Greenhouse (Sept. 24, 2021).
Categories:
Technology & Law
Type: Other
Cass R. Sunstein, Governing by Algorithm? No Noise and (Potentially) Less Bias, (Harv. Pub. L. Working Paper No. 21-35, Sept. 23, 2021).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Administrative Law & Agencies
Type: Other
Abstract
As intuitive statisticians, human beings suffer from identifiable biases, cognitive and otherwise. Human beings can also be “noisy,” in the sense that their judgments show unwanted variability. As a result, public institutions, including those that consist of administrative prosecutors and adjudicators, can be biased, noisy, or both. Both bias and noise produce errors. Algorithms eliminate noise, and that is important; to the extent that they do so, they prevent unequal treatment and reduce errors. In addition, algorithms do not use mental short-cuts; they rely on statistical predictors, which means that they can counteract or even eliminate cognitive biases. At the same time, the use of algorithms, by administrative agencies, raises many legitimate questions and doubts. Among other things, they can encode or perpetuate discrimination, perhaps because their inputs are based on discrimination, perhaps because what they are asked to predict is infected by discrimination. But if the goal is to eliminate discrimination, properly constructed algorithms nonetheless have a great deal of promise for administrative agencies.
Cass R. Sunstein, A History of Medical Innovation That Doesn’t Ignore the Side Effects, N.Y. Times, Oct. 25, 2021.
Categories:
Health Care
Sub-Categories:
Food & Drug Law
Type: News
Abstract
In “You Bet Your Life,” Paul A. Offit looks at advances that have prolonged life, from chemotherapy to the Covid vaccine, and the difficult, even deadly, paths to arrive at them.
Hal Scott, Why US Regulators Should Allow Payment for Order Flow to Continue, Fin. Times, Sept. 20, 2021.
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Other
Azadeh N. Shahshahani & Sabi Ardalan, No Justice, No Freedom: Medical Abuse in Private Prisons, Women's eNews (Sept. 16, 2021).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Gender & Sexuality
,
Human Rights Law
Type: Other
Abstract
Almost one year later, survivors of these horrific abuses are still in precarious situations and require immigration relief.
Eli Y. Adashi et al., Mitochondrial Disease: Replace or Edit?, 373 Science 1200 (2021).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: Article
Lawrence Lessig, The First Amendment Does Not Protect Replicants, in Social Media and Democracy (Lee Bollinger & Geoffrey Stone, eds., forthcoming 2022) (Harvard Pub. L. Working Paper No. 21-34).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Science & Technology
Type: Book
Abstract
As the semantic capability of computer systems increases, the law should resolve clearly whether the First Amendment protects machine speech. This essay argues it should not be read to reach sufficiently sophisticated — "replicant" — speech.
Laurence H. Tribe & David Rosenberg, How a Massachusetts Case Could End the Texas Abortion Law, The Boston Globe, Sept. 8. 2021.
Categories:
Property Law
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
Type: News
Abstract
A legal decision once prevented a church from vetoing a Harvard Square restaurant’s liquor license. Now it could prevent other private parties from wielding government power.
Randall L. Kennedy, Say It Loud!: On Race, History, and Culture (Pantheon 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
Type: Book
Catharine A. MacKinnon, OnlyFans Is Not a Safe Platform for ‘Sex Work.’ It’s a Pimp., N.Y. TimesSept. 6, 2021).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Cyberlaw
Type: News
Cass R. Sunstein, The Arithmetic of Climate Change, (Sept. 6, 2021).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Other
Abstract
In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy” – a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of the agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.” For climate change in particular, the “social cost of carbon,” or more broadly the “social cost of greenhouse gases,” is sometimes described as “the most important number you’ve never heard of.” A key reason is that within the executive branch, the stringency of regulation of greenhouse gases emissions often depends on that number. Another reason is that the social cost of carbon can and should play a role in determining the content of other kinds of initiatives, such as a carbon tax. In the United States, the relevant numbers were challenged in court under the administrations of Barack Obama (where they were upheld) and Donald Trump (where they were struck down). The litigation raises fundamental questions about the role of science, economics, and politics in judicial review of agency action, and about the relationship between courts and the administrative state. With respect to the social cost of carbon: (1) A decision to use the global number, as opposed to the domestic number, would be straightforward to defend against an arbitrariness challenge; a decision to use the domestic number, as opposed to the global number, would be difficult to defend against an arbitrariness challenge. (2) A decision to use a low discount rate, such as two percent, would be straightforward to defend against an arbitrariness challenge; a decision to use a high discount rate, such as seven percent, would be exceedingly difficult to defend against an arbitrariness challenge. (3) A wide range of decisions – involving, for example, climate sensitivity and the damage function -- raise difficult questions in science and economics; they should be straightforward to defend against an arbitrariness challenge, but only if they follow from a reasoned justification. (4) Approaches that take account of equity – including “prioritarianism” – should be defensible against an arbitrariness challenge, as should be a refusal to adopt such approaches, but here again, a reasoned justification is required. (5) A decision to “back out” a social cost of carbon, from some specific target, would be challenging to defend against an arbitrariness challenge. A general lesson, with broader implications, is that judicial review of the social cost of carbon should (and likely will) involve a procedural hard look, not a substantive hard look. A procedural hard look is important to defend against failures of both deliberation and democracy; a substantive hard look would strain judicial capacities.
Jeannie Suk Gersen, The Manifold Threats of the Texas Abortion Law, NewYorker.com (Sept. 5, 2021).
Categories:
Government & Politics
,
Health Care
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Fourteenth Amendment
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
Laurence H. Tribe, What the Justice Department Should Do to Stop the Texas Abortion Law, Wash. Post, Sept. 5, 2021.
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Supreme Court of the United States
,
Executive Office
Type: News
Kenneth W. Mack,Critical Race Theory and Scholarly Analyses of Race in France (forthcoming La Revue des Droits de l'Homme, September 2021).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
,
Discrimination
,
Legal Theory & Philosophy
Type: Other
Abstract
This preface to a special issue on Race and the Law of La Revue des Droits de l’Homme, presents a genealogy of Critical Race Theory, framed in light of the tendency in France to avoid fulsome scholarly discussions of racial identity, racial inequality and racial attitudes. The preface also frames its genealogy in light of political attacks on CRT that have been launched both in the United States and elsewhere in the world. Its genealogy frames the origins of CRT in the context of increased scholarly interest in race as a social construction during the 1980s and 1990s, and in the additional context of 1970s, 80s, and 90s scholarship that questioned universalizing and colorblind legal regimes of nations that purported to guarantee equality without regard to race. It also locates CRT within the larger universe of Critical Theory, including Critical Legal Studies, and examines concepts such as social construction, intersectionality, whiteness, structural racism and identity performance.
Cass R. Sunstein, Sludge: What Stops Us from Getting Things Done and What to Do About It (2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Elections & Voting
Type: Book
Abstract
How we became so burdened by red tape and unnecessary paperwork, and why we must do better. We’ve all had to fight our way through administrative sludge–filling out complicated online forms, mailing in paperwork, standing in line at the motor vehicle registry. This kind of red tape is a nuisance, but, as Cass Sunstein shows in Sludge, it can also also impair health, reduce growth, entrench poverty, and exacerbate inequality. Confronted by sludge, people just give up–and lose a promised outcome: a visa, a job, a permit, an educational opportunity, necessary medical help. In this lively and entertaining look at the terribleness of sludge, Sunstein explains what we can do to reduce it. Because of sludge, Sunstein, explains, too many people don’t receive benefits to which they are entitled. Sludge even prevents many people from exercising their constitutional rights–when, for example, barriers to voting in an election are too high. (A Sludge Reduction Act would be a Voting Rights Act.) Sunstein takes readers on a tour of the not-so-wonderful world of sludge, describes justifications for certain kinds of sludge, and proposes "Sludge Audits" as a way to measure the effects of sludge. On balance, Sunstein argues, sludge infringes on human dignity, making people feel that their time and even their lives don’t matter. We must do better.
William P. Alford, The Discordant Singer: How Peter Singer’s Treatment of Global Poverty and Disability Is Inconsistent and Why It Matters, 1 Am. J. L. & Equal. 194 (2021).
Categories:
Discrimination & Civil Rights
,
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Poverty Law
,
Disability Rights
,
Disability Law
Type: Article
Abstract
Peter Singer is well known for having made a powerful case for a vastly greater commitment, by each of us individually and by society, to the alleviation of global poverty. He is also well known for his views regarding the lives of “profoundly intellectually disabled humans,” going so far as to make the case that [t]here will surely be some nonhuman animals whose lives, by any standard, are more valuable than the lives of some humans. A chimpanzee, dog, or pig, for instance, will have a higher degree of self-awareness and a greater capacity for meaningful relations with others than a severely retarded infant or someone in a state of advanced senility. The case Singer makes for global poverty alleviation is in sharp tension with his treatment of disability in three important interrelated respects. First, Singer’s argument for poverty alleviation exemplifies well his call for a reason-based ethics grounded in an equal consideration of the interests of all parties affected by one’s decisions. However, his treatment of disability is troublingly imprecise as to matters of life and death. At times, he seeks to parry opposing positions more rhetorically than substantively, and he also evidences rigid preconceptions, impervious to the experience of persons with a disability, that lead to self-reinforcing conclusions. Second, whereas he readily and admirably challenges conventional constructs in discussing poverty alleviation, he embraces them when considering disability. And third, although he clearly states that he expects his writing to spur concrete action with regard to poverty alleviation, when taken to task for the implications of his writing about disability, he resists engaging with consequences it may have. This is not only concerning for those who urge greater attention to dignitarian concerns but also raises questions about the manner in which he has applied his own utilitarian analysis. This article proceeds by first laying out the rationale for and essence of Singer’s argument that there is an obligation to do what one can to alleviate global poverty. In Part 2, it sets forth the foundations for his treatment of disability, culminating in his conclusion that, should parents wish, “killing a disabled infant is not morally equivalent to killing a person. Very often it is not wrong at all.” Part 3 examines tensions between these two positions before concluding that Singer might better advance his goal of global poverty alleviation were he to approach disability with a blend of rigor, imagination, and concern for the impact of his work comparable to that which characterizes his treatment of poverty.
Memme Onwudiwe, Time to Reconsider Training for the Future of the Legal Industry, Law.com (Sept. 01, 2021)
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Services
Type: Other
Gerald L. Neuman, Indirect Discrimination and the COVID-19 Pandemic (Aug. 27, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Health Care
Sub-Categories:
Gender & Sexuality
,
Disability Rights
,
LGBTQ Rights Law
,
Health Law & Policy
,
Human Rights Law
Type: Other
Abstract
This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of indirect discrimination (or practices with discriminatory impact) during the COVID-19 pandemic. The participants included academics, advocates, and mandate holders in the United Nations and regional human rights systems. The discussion included the theory and practice of antidiscrimination norms and alternative framings for analyzing the same harms, in contexts of judicial, legal, and political strategy.
Jeannie Suk Gersen, Should the Government Impose a National Vaccination Mandate?, NewYorker.com (Aug. 26, 2021).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Other
Randall L. Kennedy, More Foe Than Friend: The Supreme Court and the Pursuit of Racial Equality, The Nation, Aug. 23, 2021, at 32 (reviewing Orville Vernon Burton & Armand Derfner, Justice Deferred: Race and the Surpeme Court (2021)).
Categories:
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Civil Rights
,
Race & Ethnicity
Type: Article
Annette Gordon-Reed, The Color Line, N.Y. Rev. Books, Aug. 19, 2021, at 26 (reviewing W.E.B. Du Bois’s Data Portraits: Visualizing Black America: The Color Line at the Turn of the Twentieth Century (Whitney Battle-Baptiste & Britt Rusert eds., 2018), Black Lives 1900: W.E.B. Du Bois at the Paris Exposition (Julian Rothenstein ed., 2019), Michael Friendly & Howard Wainer, A History of Data Visualization and Graphic Communication (2021))
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
Type: Article
Abstract
Gordon-Reed reviews several books on Blacks history, including, W. E. B. Du Bois’s Data Portraits: Visualizing Black America: The Color Line at the Turn of the Twentieth Century edited by Whitney Baule-Baptiste and Brilt Rusert, Black Lives 1900: W.E.B. Du Boisat the Paris reposition edited by Julian Rothenstein, with an introduction by Jacqueline Francis and Stephen G. Hall, and A History of Data Visualization and Graphic Communication by Michael Friendly and Howard Wainer.
Lucian Bebchuk & Roberto Tallarita, Opinion, ‘Stakeholder’ Talk Proves Empty Again, Wall St. J., Aug. 18, 2021.
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
Type: Other
Yochai Benkler, The Alternative to Despair is to Build an Ark, 373 Science 750 (2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
Type: Article
Elizabeth Warren, Opinion, How to Fix Our Rigged Tax System, Wash. Post, Aug. 12, 2021.
Categories:
Taxation
Sub-Categories:
Tax Policy
Type: News
Abstract
American workers and families don’t want handouts. They want everybody to play by the same rules.
I. Glenn Cohen & Christopher T. Robertson, Cruise ship vaccine mandates are great. The latest ruling for them wasn’t., Wash. Post., Aug. 11, 2021.
Categories:
Health Care
,
Constitutional Law
Sub-Categories:
First Amendment
,
Health Law & Policy
Type: News
Abstract
A judge’s framing of the controversy as a free-speech issue fits a troubling pattern.
Leslie Book, T. Keith Fogg & Nina E. Olson, Reducing Administrative Burdens to Protect Taxpayer Rights (Aug. 10, 2021).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - Federal
,
Taxation - Personal Income
Type: Other
Abstract
The tax system designed by Congress imposes significant administrative burdens on taxpayers. IRS decisions regarding how it administers tax laws can add to congressionally imposed burdens. The administrative burdens are consequential and hurt some people, especially lower- or moderate-income individual taxpayers, more than others. While the IRS strives to measure and reduce the time and money taxpayers spend to comply with their tax obligations, it does not consider the effect administrative burdens have on taxpayer rights, including the right to be informed, the right to pay no more than the correct amount of tax, and the right to a fair and just tax system. In this Article we discuss the concept of administrative burdens and reveal specific examples of how IRS actions, and inaction, have burdened taxpayers and jeopardized taxpayer rights. In addition to identifying and contextualizing these problems, we propose that the IRS conduct Taxpayer Rights Impact Statements on new and existing systems to evaluate when it would be appropriate to reduce, eliminate, or shift burdens away from citizens and onto the government or third parties.
Jody Freeman & Matthew Stephenson, How a little-known law might help protect the ‘dreamers’, Wash. Post, Aug. 6, 2021.
Categories:
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
Type: News
Abstract
The Congressional Review Act gives Congress the power to disapprove of agency rules by simple majority vote. It could provide a way around the filibuster to keep the existing program for dreamers in place
Martha Minow & Newton Minow, Why government has a duty to save the news industry, L.A. Times, Aug. 6, 2021.
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: News
Laurence Tribe, Here’s a roadmap for the Justice Department to follow in investigating Trump, Wash. Post, Aug. 5, 2021.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Elections & Voting
Type: News
Steven Shavell, On the Law of the Household: The Principles Used by Parents in Disciplining Their Children (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1070, Aug. 5, 2021).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
Type: Other
Abstract
In this article I first describe the basic principles that parents employ in disciplining their children. The description is based on a survey of parents, the major results of which are that parental sanctions are premised on wrongdoing—not on the mere causation of harm; that parental sanctions tend to be greater when wrongdoing results in harm than when it does not; that parental sanctions for intentionally harmful conduct exceed those for negligence; and that parental sanctions are not raised when the probability that wrongdoing would be discovered is low.I then develop a theory to explain the principles of discipline as functional for parents. The kernel of the theory is that the rules of discipline maximize the expected utility of parents—assuming that the utility of parents is reduced by the occurrence of harm and also reflects the well–being of their children.After elaborating the theory, I comment on several related issues, including the possible influence of childhood experience on our preferences as adults over legal rules; and I remark on the similarity between the principles of criminal law and those applied by parents in disciplining their children.
Lucian A. Bebchuk & Roberto Tallarita, Will Corporations Deliver Value to All Stakeholders? (Aug. 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Shareholders
Type: Other
Abstract
Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance encourage society to rely on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics of stakeholder governance question whether corporate leaders have incentives to protect stakeholders and doubt the reliability of pledges by corporate leaders to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views. The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable’s Statement on the Purpose of a Corporation (the “BRT Statement”). Signed by CEOs of most of the country’s major companies, the BRT Statement expressed a commitment to deliver value to all stakeholders and not just shareholders and was widely viewed as a major milestone that would usher in a new stakeholder capitalism and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, the companies whose CEOs signed the highly visible BRT Statement would be natural candidates to do so, and they thus provide an instructive test case for an empirical investigation. To investigate whether the BRT Statement represented a meaningful commitment or was mostly for show, we review a wide array of hand-collected corporate documents of the over 130 U.S. public companies that joined the BRT Statement (the “BRT Companies”). We present the following six findings: First, examining the almost one-hundred BRT Companies that updated their corporate governance guidelines in the sixteen-month period between the release of the BRT Statement and the end of 2020, we find that they generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain in their guidelines a commitment to shareholder primacy; Second, reviewing all the corporate governance guidelines of BRT Companies that were in place as of the end of 2020, we find that most of them reflected a shareholder primacy approach, and an even larger majority did not include any mention of stakeholders in their discussion of corporate purpose; Third, examining the over forty shareholder proposals regarding the implementation of the BRT Statement that were submitted to BRT Companies during the 2020 or 2021 proxy season, and the subsequent reactions of these companies, we find that none of these companies accepted that the BRT Statement required any changes to how they treat stakeholders, and most of them explicitly stated that their joining the BRT Statement did not require any such changes. Fourth, reviewing all the corporate bylaws of the BRT Companies, we find that they generally reflect a shareholder-centered view; Fifth, reviewing the 2020 proxy statements of the BRT Companies, we find that the great majority of these companies did not even mention their signing of the BRT Statement, and among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in the treatment of stakeholders; Sixth, we find that the BRT Companies continued to pay directors compensation that strongly aligns their interests with shareholder value. Furthermore, we document that the corporate governance guidelines of BRT Companies as of the end of 2020 commonly required such alignment of director compensation with stockholder value and generally avoided any support for linking such compensation to stakeholder interests. Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders. These findings support the view that pledges by corporate leaders to serve stakeholders would not materially benefit stakeholders, and that their main effect could be to insulate corporate leaders from shareholder oversight and deflect pressures for stakeholder-protecting regulation. Stakeholder governance that relies on the discretion of corporate leaders would not represent an effective way to address growing concerns about the effects corporations have on stakeholders. This paper is part of a larger research project on stakeholder capitalism of the Harvard Law School Corporate Governance. Other parts of this research project are The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita, and For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.
I. Glenn Cohen, Can Your Employer Require That You Get Vaccinated? It Depends Where You Live, Time, Aug. 2, 2021.
Categories:
Labor & Employment
,
Health Care
Sub-Categories:
Health Law & Policy
,
Labor Law
Type: Article
Oren Bar-Gill & Alma Cohen, How to Communicate the Nudge: A Real-World Policy Experiment, (Harvard Law Sch. John M. Olin Ctr. for Law, Econ. & Bus., Discussion Paper No. 1067, Aug. 2, 2021).
Categories:
Consumer Finance
Sub-Categories:
Consumer Protection Law
Type: Other
Abstract
Disclosure-based Nudges are being increasingly utilized by governments around the world to achieve policy goals related to health, safety, employment, environmental protection, retirement savings, credit, debt and more. And, yet, a critical aspect of these Nudge-type policy interventions—the mode of communication—remains unexplored. What is the best way to communicate information to individuals—by letter, by phone call (or voice message), by email, by text message or video message? We begin to answer this basic question using a real-world policy experiment on debt collection procedures. Debtors often lack adequate information about the debt, the judgment, and the enforcement and collection procedures. As a result, the process of debt collection is often harmful to the debtor and ineffective in securing repayment. We conducted a study (N = 36,362), in cooperation with the Israeli Ministry of Justice, to improve communication with debtors and to evaluate the effect of such improved communication strategies on collection procedures and outcomes. A novelty of this study is our focus on the choice of medium—telephone, regular mail, text message and video message—holding fixed the content of the communication. We found that digital communication strategies, specifically communicating via text message, were the most cost-effective, significantly improving outcomes for both debtors and creditors. Our results should inform the choice of communication mediums in the many settings in which disclosure-based Nudge policies are employed.
Roberto Mangabeira Unger, Victoria Nicolielo Reginatto, João Pedro Braga Carvalho, Mariana Grilli Belinotte, Carlos Sávio Gomes Teixeira, & Philippe Oliveira de Almeida, Imaginação Institucional: a Vanguarda Rebelde do Pensamento Brasileiro [Institutional Imagination: the Rebellious Vanguard of Brazilian Thought], Revista de Ciências do Estado [Rev. Ciênc. Estado], Aug. 2021, at 1 (Port.).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Mind Sciences
,
Legal Theory & Philosophy
,
Foreign Law
Type: Article
Abstract
Interview given by Professor Dr. Roberto Mangabeira Unger to Revista de Ciências do Estado.
Laurence H. Tribe, Will Trump ever be held accountable? The Justice Department just increased the odds., Wash. Post., July 29, 2021.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Executive Office
Type: News
Stephen E. Sachs, Closing Reflections on the Supreme Court and Constitutional Governance: Testimony Before the Presidential Commission on the Supreme Court of the United States (July 20, 2021).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Other
Abstract
In considering potential reforms, the Commission should take care to do the following: * Preserve judicial independence. The courts’ job is to apply the law to cases before them. We rely on courts, not only to reach individual judgments of guilt or civil liability, but to enforce the limited powers of different governments and different branches. Correcting for judges’ errors, even serious ones, by shifting these powers to another department would not make that enforcement more reliable. But it would harm the courts’ ability to act as neutral tribunals in particular cases—a crucial element of the rule of law, and for that reason a frequent target of autocracies the world over. America has a nearly unbroken tradition of judicial independence, and we should not break it today. * Put politics in its place. If you want a less political judiciary, you need a more political amendment process. You need to move political fights out of judicial conference rooms and into the statehouses and the halls of Congress. A “court reform” that ignores Article V is reform only in name—because a Court that practices constitutional amendment on the cheap, evading the Constitution in the guise of interpreting it, will forever be a target for partisan capture. * Beware unforeseen consequences. It is much harder to build than to destroy. Traditions of judicial independence built up over time can be demolished rather quickly, and many proposed reforms would have consequences far beyond what we expect. These might include: ** measures that are likely unconstitutional absent amendment, such as supermajority requirements or 18-year terms; ** measures that would be constitutional but dangerous and irresponsible, such as court-packing or jurisdiction-stripping; ** measures that would be lawful but unwise, such as cameras in the Court. The Commission’s greatest contribution might be to raise the profile of smaller-bore reforms, whose consequences can be better assessed (and, if necessary, more easily reversed). There is much that could be improved about the Supreme Court. Over the last century, the Justices have too often mistaken their own rulings for the law they are charged to enforce. But these problems are not yet matters of universal agreement, and they can only be solved by the slow work of persuading others. There are no drastic policy changes that would avoid the need for this work, and there is no sudden crisis that calls out for major reform. Rather, the Commission’s first rule should be to do no harm.
Mary Ann Glendon, Who's Afraid of FDR?, American Purpose (July 19, 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
Type: Other
Abstract
FDR wanted the federal government to help with poor relief. He never meant for Uncle Sam to do it alone.
Nikolas Bowie, How the Supreme Court Dominates Our Democracy, Wash. Post, Jul. 16, 2021.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Abstract
Judicial review gives any five justices power over the whole government. Why?