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Categories
Robert H. Sitkoff & John Morley, A Taxonomy of American Trust Law: Adaptation for Private Ordering, in The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., Oxford Univ. Press forthcoming 2020).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
Robert H. Sitkoff, Extrinsic Fiduciary Duties, in Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding eds., Cambridge Univ. Press forthcoming 2020).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, U. Chi. L. Rev. (forthcoming 2020).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Housing Law
Type: Article
Mark Tushnet, A Short History of European Law: The Last Two and a Half Millennia, 49 J. Interdisc. Hist. 492 (2019)(reviewing Benjamin Lieberman & Elizabeth Gordon, Climate Change in Human History (2018)).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Climate Change
,
European Law
,
Legal History
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Lawrence Lessig, They Don't Represent Us: Reclaiming Our Democracy (2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Government Accountability
Type: Book
Abstract
With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Equity and Law: Fusion and Fission (John C.P. Goldberg, Henry E. Smith & Peter G. Turner eds., 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Remedies
,
Legal Theory & Philosophy
,
Comparative Law
,
Legal History
Type: Book
Abstract
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world. Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue. Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others. Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.
Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (2019).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Criminal Prosecution
,
Ancient Law
,
Foreign Law
,
Legal History
Type: Book
Abstract
This book explores the role of mens rea, broadly defined, as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word “felony” itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, willed in a way not constrained by necessity, and evil or wicked in its essence. Examines what factors juries weighed in sorting the guilty from the innocent in the first two centuries of the criminal trial jury. Situates the medieval English law of felony in a broader cultural, social, and religious setting. Speaks to current controversies in the field of criminal law, such as the role of intentionality in determining the bounds of criminal responsibility.
Martha Minow, When Should Law Forgive? (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Samantha Power, The Education of an Idealist: A Memoir (2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Human Rights Law
,
Biography & Tribute
Type: Book
Alan M. Dershowitz, Defending Israel: The Story of My Relationship with My Most Challenging Client (2019).
Categories:
Legal Profession
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Services
Type: Book
Henry E. Smith, Restating the Architecture of Property, in 10 About Modern Studies in Property Law (Ben McFarlane & Sinéad Agnew eds., 2019).
Categories:
Property Law
Sub-Categories:
Personal Property
,
Real Estate
Type: Book
Abstract
Property law has proven difficult to restate, with none of the American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property. In the terms of complex systems theory, a Restatement should reflect the arrangement and interactions, the groupings, and the coherence (sometimes) of property law, rather than treating it as a heap of full detachable rules and components. Conventional strong versions of the bundle of rights picture of property, reinforced by the nature of the Restatement process, make it difficult to address property as a complex system. Using examples of possession and the property torts, the paper shows how a Restatement can begin to incorporate property’s architecture and why it matters to the operation and the development of the law.
Cass R. Sunstein, Conformity: The Power of Social Influences (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Abstract
We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender. How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent. An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more. Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself. Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best. A well-functioning democracy depends on it.
Yun-chien Chang & Henry E. Smith, Convergence and Divergence in Systems of Property Law: Theoretical and Empirical Analyses, 92 S. Cal. L. Rev. (forthcoming May 2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Comparative Law
,
Property Rights
Type: Article
Abstract
This article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, the structure of property law among all jurisdictions in the world will converge, or is similar since some time in the distant past, as they all face the same, positive transaction costs in delineating property rights. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominium, tenancy in common, and limited property rights serve as prominent examples.
Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Book
Abstract
The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.
Jesse M. Fried, Powering Preemptive Rights with Presubscription Disclosure, in The Law and Finance of Related Party Transactions (Luca Enriques & Tobias H. Tröger eds., 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
Type: Book
Abstract
Preemptive rights can prevent cheap-issuance tunneling by a controller when outside investors know that the offered securities are cheap. But when outsiders cannot tell whether the securities are cheap or overpriced, preemptive rights fail to prevent such tunneling. Afraid of purchasing overpriced securities, outsiders may rationally refrain from purchasing (even when the securities are in fact cheap), and then suffer cheap-issuance losses. I put forward a mechanism to make preemptive rights more effective: requiring disclosure of a controller’s subscription commitment, before outside investors must finalize their own, so that outsiders can choose to mimic it.
Transparency in Health and Health Care in the United States: Law and Ethics (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar & Barbara J. Evans eds., 2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Book
Abstract
Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry. Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Working at the intersection of law, medicine, ethics, and business, the book goes beyond the buzzwords to the heart of transparency's transformative potential, while interrogating its obstacles and downsides. It should be read by anyone looking for a better understanding of transparency in the health care context.
Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Gender & Sexuality
,
Feminist Legal Theory
,
Law & Political Theory
,
Courts
,
Politics & Political Theory
,
Comparative Law
,
International Law
,
Foreign Relations
Type: Book
Abstract
Governance Feminism: Notes from the Field brings together nineteen chapters from leading feminist scholars and activists to critically describe and assess contemporary feminist engagements with state and state-like power. Gathering examples from North America, South America, Europe, Asia, and the Middle East, it complements and expands on the companion volume Governance Feminism: An Introduction. Its chapters argue that governance feminism (GF) is institutionally diverse and globally distributed—emerging from traditional sites of state power as well as from various forms of governance and operating at the grassroots level, in the private sector, in civil society, and in international relations. The book begins by confronting the key role that crime and punishment play in GFeminist projects. Here, contributors explore the ideological and political conditions under which this branch of GF became so robust and rethink the carceral turn. Other chapters speak to another face of GFeminism: feminists finding, in mundane and seemingly unspectacular bureaucratic tools, leverage to bring about change in policy and governance practices. Several contributions highlight the political, strategic, and ethical challenges that feminists and LGBT activists must negotiate to play on the governmental field. The book concludes with a focus on feminist interventions in postcolonial legal and political orders, looking at new policy spaces opened up by conflict, postconflict, and occupation. Providing a clear, cross-cutting, critical lens through which to map developments in feminist governance around the world, Governance Feminism: Notes from the Field makes sense of the costs and benefits of current feminist realities to reimagine feminist futures. Contributors: Libby Adler, Northeastern U; Aziza Ahmed, Northeastern U; Elizabeth Bernstein, Barnard College; Amy J. Cohen, Ohio State U; Karen Engle, U of Texas at Austin; Jacob Gersen, Harvard U; Leigh Goodmark, U of Maryland; Aeyal Gross, Tel Aviv U; Aya Gruber, U of Colorado, Boulder; Janet Halley, Harvard U; Rema Hammami, Birzeit U, Palestine; Vanja Hamzić, U of London; Isabel Cristina Jaramillo-Sierra; Prabha Kotiswaran, King’s College London; Maleiha Malik, King’s College London; Vasuki Nesiah, New York U; Dianne Otto, Melbourne Law School; Helen Reece; Darren Rosenblum, Pace U; Jeannie Suk Gersen, Harvard U; Mariana Valverde, U of Toronto.
Jacob Gersen & Jeannie Suk Gersen, Governing Sex through Bureaucracy, in Governance Feminism: Notes from the Field 159 (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Book
Samuel G. Finlayson, John D. Bowers, Joichi Ito, Jonathan L. Zittrain, Andrew L. Beam & Isaac S. Kohane, Adversarial Attacks on Medical Machine Learning, 363 Science 1287 (2019).
Categories:
Technology & Law
,
Health Care
Sub-Categories:
Health Law & Policy
,
Medical Technology
,
Science & Technology
,
Information Privacy & Security
Type: Article
Abstract
With public and academic attention increasingly focused on the new role of machine learning in the health information economy, an unusual and no-longer-esoteric category of vulnerabilities in machine-learning systems could prove important. These vulnerabilities allow a small, carefully designed change in how inputs are presented to a system to completely alter its output, causing it to confidently arrive at manifestly wrong conclusions. These advanced techniques to subvert otherwise-reliable machine-learning systems—so-called adversarial attacks—have, to date, been of interest primarily to computer science researchers (1). However, the landscape of often-competing interests within health care, and billions of dollars at stake in systems' outputs, implies considerable problems. We outline motivations that various players in the health care system may have to use adversarial attacks and begin a discussion of what to do about them. Far from discouraging continued innovation with medical machine learning, we call for active engagement of medical, technical, legal, and ethical experts in pursuit of efficient, broadly available, and effective health care that machine learning will enable.
Roberto Mangabeira Unger, The Knowledge Economy (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Adam Smith and Karl Marx recognized that the best way to understand the economy is to study the most advanced practice of production. Today that practice is no longer conventional manufacturing: it is the radically innovative vanguard known as the knowledge economy. In every part of the production system it remains a fringe excluding the vast majority of workers and businesses. This book explores the hidden nature of the knowledge economy and its possible futures. The confinement of the knowledge economy to these insular vanguards has become a driver of economic stagnation and inequality throughout the world. Traditional mass production has stopped working as a shortcut to economic growth. But the alternative—a deepened and socially inclusive form of the knowledge economy—continues to lie beyond reach in even the richest countries. The shape of contemporary politics on both the left and the right reflects a failure to come to terms with this dilemma and to overcome it. Unger explains the knowledge economy in the truncated and confined form that it has today and proposes the way to a knowledge economy for the many: changes not just in economic institutions but also in education, culture, and politics. Just as Smith and Marx did in their time, he uses an understanding of the most advanced practice of production to rethink both economics and the economy as a whole.
Jeannie Suk Gersen, Unpopular Speech in a Cold Climate, NewYorker.com (Mar. 14, 2019).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
First Amendment
,
Legal Services
,
Professional Responsibility
Type: Other
Randall Kennedy, Derrick Bell and Me (Mar. 8, 2019).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Critical Legal Studies
,
Biography & Tribute
,
Legal Education
,
Legal Reform
,
Legal Scholarship
Type: Other
Abstract
This paper describes Professor Derrick Bell’s life in the law, assesses his writings, appraises his struggles at Harvard Law School, and recounts his relationship with a colleague, Randall Kennedy, for whom he was a mentor, friend, and adversary.
Louis Kaplow, Market Power and Income Taxation (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 994, NBER Working Paper No. w25578, Mar. 6, 2019).
Categories:
Taxation
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Economics
,
Antitrust & Competition Law
,
Law & Economics
,
Tax Policy
,
Taxation - Personal Income
Type: Other
Abstract
Does significant market power or the presence of large rents affect optimal income taxation, calling for greater redistribution due to tainted gains? Or perhaps less because of an additional wedge that distorts labor effort? Do concerns about inequality have implications for antitrust, regulation, trade, and other policies that influence market power, which contributes to inequality? This article addresses these questions in a model with heterogeneous abilities and hence a concern for distribution, markups, multiple sectors, ownership that is a function of income, allowance for any share of profits to be recoveries of investments (including rent-seeking efforts), endogenous labor supply, and a nonlinear income tax. In this model, proportional markups with no profit dissipation have no effect on the economy, and a policy that reduces a nonproportional markup raises (lowers) welfare when it is higher (lower) than a weighted average of other markups. With proportional (partial or full) profit dissipation, proportional markups are equivalent to a downward shift of the distribution of abilities, and the welfare effect of correcting nonproportional markups associated with nonproportional profit dissipation now depends also on the degree of dissipation and how that is affected by the policy. In all cases, optimal policies maximize consumer plus producer surplus, without regard to a policy’s distributive effects on consumers and profits or how markups and income taxation distort labor effort.
Mihir Desai, How Finance Works: The HBR Guide to Thinking Smart About the Numbers (2019).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Finance
,
Investment Products
Type: Book
Abstract
Based on a popular class taught by a Harvard Business School professor. If you're not a numbers person, then balance sheets and financial jargon can be intimidating and easy to ignore. But if you want to advance in your career, it's crucial that you are able to make smart financial decisions and develop the confidence to clearly communicate those decisions to others. In How Finance Works, Mihir Desai--a professor at Harvard Business School and author of the widely praised book The Wisdom of Finance--guides you into the complex but endlessly fascinating world of finance and demystifies it in the process. Through entertaining stories, interactive exercises, full-color visuals, and a conversational style that belies the topic, Desai tackles a broad range of subjects that will give you the skills and knowledge you need to finally understand how finance works. These include: The ins and outs of balance sheets, and how different financial levers can affect a company's performance How companies fund their operations and investments in different ways Why finance is concerned with cash flow versus profits How value is created, measured, and maximized The importance of capital markets in helping companies grow Whether you're a student or manager, an aspiring CFO or entrepreneur, How Finance Works is the colorful and interactive guide you need to help you start thinking more deeply about the numbers.
Natalie Salmanowitz & Holger Spamann, Does the Supreme Court Really Not Apply Chevron When It Should?, 57 Int'l Rev. L. & Econ. 81 (2019).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Statutory Interpretation
Type: Article
Abstract
William Eskridge and Lauren Baer’s (96 GEO. L. J. 1083 (2008)) “empirical study of all 1014 Supreme Court cases between Chevron and Hamdan in which an agency interpretation of a statute was at issue” finds that “the Court does not apply the Chevron framework in nearly three-quarters of the cases where it would appear applicable.” Our reexamination of this study finds that the fraction of such cases is far lower, and indeed closer to zero. Our main methodological innovation is to infer Chevron applicability from Supreme Court litigants’ briefs rather than our own evaluation of the cases’ facts, as in Eskridge and Baer’s study. In over half the cases flagged by Eskridge and Baer, neither of the parties (nor, where applicable, the Solicitor General as amicus) cited Chevron, and in almost half of the cases within that subset, no one argued for or against deference of any kind. In most of a sample of the remaining cases, the Supreme Court either did not need to reach the Chevron issue, or actually applied it, at least in an abbreviated form.
Eli Y. Adashi, I. Glenn Cohen, Jacob H. Hanna, Azim M. Surani & Katsuhiko Hayashi, Stem Cell-Derived Human Gametes: The Public Engagement Imperative, Trends Molecular Med. (Feb. 6 2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Bioethics
Type: Article
Abstract
The implications of scientific breakthroughs are rarely faced up to in advance of their realization. Stem cell-derived human gametes, a disruptive technology in waiting, are likely to recapitulate this historic pattern absent active intervention. Herein we call for the conduct of thoughtful ante hoc deliberations on the prospect of stem cell-derived human gametes with an eye toward minimizing potential untoward post hoc regulatory or statutory impositions.
Jon Kleinberg, Jens Ludwig, Sendhil Mullainathan & Cass Sunstein, Discrimination in the Age of Algorithms (Feb. 5, 2019).
Categories:
Technology & Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Law & Behavioral Sciences
,
Employment Discrimination
,
Networked Society
,
Science & Technology
Type: Other
Abstract
The law forbids discrimination. But the ambiguity of human decision-making often makes it extraordinarily hard for the legal system to know whether anyone has actually discriminated. To understand how algorithms affect discrimination, we must therefore also understand how they affect the problem of detecting discrimination. By one measure, algorithms are fundamentally opaque, not just cognitively but even mathematically. Yet for the task of proving discrimination, processes involving algorithms can provide crucial forms of transparency that are otherwise unavailable. These benefits do not happen automatically. But with appropriate requirements in place, the use of algorithms will make it possible to more easily examine and interrogate the entire decision process, thereby making it far easier to know whether discrimination has occurred. By forcing a new level of specificity, the use of algorithms also highlights, and makes transparent, central tradeoffs among competing values. Algorithms are not only a threat to be regulated; with the right safeguards in place, they have the potential to be a positive force for equity.
Cass R. Sunstein, On Freedom (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In this pathbreaking book, New York Times bestselling author Cass Sunstein asks us to rethink freedom. He shows that freedom of choice isn’t nearly enough. To be free, we must also be able to navigate life. People often need something like a GPS device to help them get where they want to go—whether the issue involves health, money, jobs, children, or relationships. In both rich and poor countries, citizens often have no idea how to get to their desired destination. That is why they are unfree. People also face serious problems of self-control, as many of them make decisions today that can make their lives worse tomorrow. And in some cases, we would be just as happy with other choices, whether a different partner, career, or place to live—which raises the difficult question of which outcome best promotes our well-being. Accessible and lively, and drawing on perspectives from the humanities, religion, and the arts, as well as social science and the law, On Freedom explores a crucial dimension of the human condition that philosophers and economists have long missed—and shows what it would take to make freedom real.
Renee N. Salas, Francine Laden, Wendy B. Jacobs & Ashish K. Jha, The U.S. Environmental Protection Agency's Proposed Transparency Rule Threatens Health, 170 Annals Internal Med. 197 (2019).
Categories:
Environmental Law
,
Health Care
,
Government & Politics
,
Technology & Law
Sub-Categories:
Administrative Law & Agencies
,
Government Transparency
,
Health Law & Policy
,
Science & Technology
Type: Article
Albert H. Choi & Kathryn E. Spier, Class Actions and Private Antitrust Litigation (Va. L. & Econ. Res. Paper No. 2019-01, Feb. 4, 2019).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Class Action Litigation
,
Litigation & Settlement
,
Remedies
,
Law & Economics
Type: Article
Abstract
The paper analyzes the effect of private antitrust litigation on firms' ability to collude and charge supra-competitive market prices. When the cost of litigation is below a threshold, firms charge high market prices, accommodate lawsuits, and accept the litigation costs as just another cost of doing business. By contrast, when the cost of litigation is above the threshold, the firms charge lower market prices and deter litigation. We model the class action as a mechanism that allows plaintiffs to lower their litigation costs, and show that class actions may or may not be privately and socially desirable. We also show that the firms' private incentives to block class action lawsuits may be either aligned with the social incentives, socially excessive, or socially insufficient. Various extensions, such as settlement, contingent fee compensation, fee shifting (loser-pays-all rule), and damage multipliers (treble damages), are also examined.
Kenneth W. Mack, A Case of Police Brutality That Helped Change Race Relations, Wash. Post, Feb. 3, 2019, at B06 (reviewing Richard Gergel, The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring (2019)).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Civil Rights
Type: News
Faraaz Mahomed, Michael Ashley Stein, Ajay Chauhan & Soumitra Pathare, 'They love me, but they don't understand me': Family support and stigmatisation of mental health service users in Gujarat, India, 65 Int’l J. Soc. Psychiatry 73 (2019).
Categories:
Family Law
,
Health Care
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Psychology & Psychiatry
,
Human Rights Law
Type: Article
Abstract
Family life is a near-universal condition and a fundamental human right. It can also have a significant impact on mental health, including recovery from mental health conditions. In India, families play a considerable role, representing a source of social, cultural, religious and, often, financial support. However, families can also play a stigmatising role. Aim: To examine the experiences of mental health service users (MHSUs) relating to stigma and support provided by family members and to consider ways in which family support can be improved. Method: This is a qualitative study. A total of 17 residential MHSUs at the Ahmedabad Hospital for Mental Health were interviewed. The results were evaluated using thematic content analysis. The results revealed that all 17 MHSUs considered their families to be important sources of support, while 14 of the 17 MHSUs also experienced stigma emanating from their families. A total of 11 experienced lack of knowledge, 4 spoke of prejudicial attitudes and 5 mentioned discriminatory behaviours. There were important gender differences in experiences. MHSUs mentioned needs ranging from education and peer support for family members to financial support. Families act both as sources of support and stigmatisation. Education needs are considerable, while the need for peer support for families and resources to aid families in supporting people with mental health conditions are also important considerations.
Jeannie Suk Gersen, Assessing Betsy Devos’s Proposed Rules on Title IX and Sexual Assault, NewYorker.com (Feb. 1, 2019, 1.33 PM).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Discrimination
,
Education Law
Type: Other
Abstract
From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.
Adam Oliver & Cass Sunstein, Does Size Matter? The Allais Paradox and Preference Reversals with Varying Outcome Magnitudes, 78 J. Behavioral & Experimental Econ. 45 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
The common consequence effect and preference reversals are two of the foundational violations of the standard model of rational choice (i.e. von Neumann–Morgenstern expected utility theory) and, as such, played an important role in the development of empirical behavioural economics. One can hypothesise, however, that due to varying degrees of risk aversion when faced with outcomes of different magnitude, the rate of both of these violations may vary with outcome size. Using various types of outcome, this article reports tests of these violations using different outcome magnitudes in within-respondent designs. The results observed are broadly consistent across outcome type: the common consequence effect, while rarely being substantially observed in any of the tests undertaken, was often found to be somewhat susceptible to outcome size while preference reversals, which were everywhere substantially observed, were not. In and of itself, the observation of systematic preference reversals implies that preferences are often constructed according to the way in which questions are asked, and is sufficient to question the usefulness of stated preference techniques for informing public policy.
Cass R. Sunstein, How Change Happens (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Social Change
Type: Book
Abstract
How does social change happen? When do social movements take off? Sexual harassment was once something that women had to endure; now a movement has risen up against it. White nationalist sentiments, on the other hand, were largely kept out of mainstream discourse; now there is no shortage of media outlets for them. In this book, with the help of behavioral economics, psychology, and other fields, Cass Sunstein casts a bright new light on how change happens. Sunstein focuses on the crucial role of social norms—and on their frequent collapse. When norms lead people to silence themselves, even an unpopular status quo can persist. Then one day, someone challenges the norm—a child who exclaims that the emperor has no clothes; a woman who says “me too.” Sometimes suppressed outrage is unleashed, and long-standing practices fall. Sometimes change is more gradual, as “nudges” help produce new and different decisions—apps that count calories; texted reminders of deadlines; automatic enrollment in green energy or pension plans. Sunstein explores what kinds of nudges are effective and shows why nudges sometimes give way to bans and mandates. Finally, he considers social divisions, social cascades, and “partyism,” when identification with a political party creates a strong bias against all members of an opposing party—which can both fuel and block social change.
Mary Ann Glendon & Seth D. Kaplan, Renewing Human Rights, First Things, Feb. 2019, at 33.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Treaties & International Agreements
Type: Article
Jeannie Suk Gersen, Nancy Gertner & Janet E. Halley, Comment on Proposed Title IX Rulemaking (Jan. 30, 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Feminist Legal Theory
,
Education Law
Type: Article
Abstract
Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.” Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
Gerald L. Neuman, What Counts as a Crime Against Humanity?, Harv. Int’l L.J. Online (Jan. 28, 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Human Rights Law
,
International Law
Type: Other
Abstract
The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.
Cass R. Sunstein & Lucia A. Reisch, Trusting Nudges: Toward a Bill of Rights for Nudging (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Many "nudges" aim to make life simpler, safer, or easier for people to navigate, but what do members of the public really think about these policies? Drawing on surveys from numerous nations around the world, Sunstein and Reisch explore whether citizens approve of nudge policies. Their most important finding is simple and striking. In diverse countries, both democratic and nondemocratic, strong majorities approve of nudges designed to promote health, safety, and environmental protection—and their approval cuts across political divisions. In recent years, many governments have implemented behaviorally informed policies, focusing on nudges—understood as interventions that preserve freedom of choice, but that also steer people in certain directions. In some circles, nudges have become controversial, with questions raised about whether they amount to forms of manipulation. This fascinating book carefully considers these criticisms and answers important questions. What do citizens actually think about behaviorally informed policies? Do citizens have identifiable principles in mind when they approve or disapprove of the policies? Do citizens of different nations agree with each other? From the answers to these questions, the authors identify six principles of legitimacy—a "bill of rights" for nudging that build on strong public support for nudging policies around the world, while also recognizing what citizens disapprove of. Their bill of rights is designed to capture citizens’ central concerns, reflecting widespread commitments to freedom and welfare that transcend national boundaries.
T. Keith Fogg, Access to Judicial Review in Non-Deficiency Tax Cases (Jan. 15, 2019).
Categories:
Taxation
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Remedies
,
Supreme Court of the United States
,
Congress & Legislation
,
Courts
,
Taxation - Personal Income
,
Taxation - Federal
Type: Other
Abstract
In the case of Flora v. United States the Supreme Court determined that the jurisdictional statute governing tax refund suits did not make clear whether a taxpayer must fully pay the tax before filing suit to obtain a refund. Despite the lack of clarity in the statute, a split in the circuits and no strong reasons for its decision, a 5-4 majority of the Court decided in its second try at the case that a taxpayer who received a statutory notice of deficiency and failed to petition the Tax Court could not pay a partial amount of the tax and sue for refund. Seventeen years later in the case of Laing v. United States, the Solicitor General argued that Flora was limited to situations in which the taxpayer had received a notice of deficiency and failed to petition the Tax Court and did not create a bar to partial payment in other situations. Despite its weak foundation and its narrow scope, the Flora decision now stands as a broad bar to taxpayers seeking a refund who do not fully pay the tax before bring the suit. The IRS and the Department of Justice have completely reversed course from the argument made by the Solicitor General in Laing. The result of the current interpretation of Flora by the lower courts is that for taxpayers who never have the opportunity to petition the Tax Court prior to assessment or who missed the opportunity to go to Tax Court but can never scape together enough money to fully pay the tax the opportunity for judicial review of the actions of the IRS may be lost. The recent case of Larson v. United States brings this home in stark fashion. Mr. Stark promoted tax shelters. The IRS assessed against him, and others, a tax shelter promotion penalty of approximately $160 million. Because the penalty was an assessable penalty which did not exist when Flora was decided and because he does not have $160 million with which to satisfy the assessment, Mr. Larson is barred from judicially contesting this assessment. This paper analyzes how we reached the situation that certain taxpayers have no opportunity for judicial review of the actions of the IRS and suggests a path that would allow ever taxpayer the opportunity for judicial review of their tax assessment. It appeared that Congress attempted to provide an opportunity for judicial review when it passed the Collection Due Process provisions in 1998; however, the regulations written by the IRS have the effect of cutting off judicial review in situations in which the taxpayer has the opportunity for administrative review. The paper suggests that relatively small changes to the Collection Due Process provisions could provide the opportunity for judicial review of tax assessments to everyone. It also explores other avenues that could provide this opportunity.
Louis Kaplow, On the Design of Legal Rules: Balancing Versus Structured Decision Procedures, 132 Harv. L. Rev. 992 (2019).
Categories:
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Practice & Procedure
,
Dispute Resolution
,
Litigation & Settlement
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Courts
Type: Article
Abstract
Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. This Article compares such protocols to unconstrained balancing and finds them to be inferior with respect to the quality of final decisions: they sometimes fail to impose liability even though the harm is greater than the benefit, and they sometimes impose liability even though the benefit exceeds the harm. The Article also develops the principles of optimal information (evidence) collection and shows how structured decision procedures violate every core lesson and presuppose distinctions that often are incoherent or impractical to implement. The analysis addresses concerns about balancing that may motivate structured protocols, how less restrictive alternatives should be assessed, and the extent to which legal proceedings are conducted in conformity with either approach, as well as how they might be reformed.
Susan Crawford, FIBER: The Coming Tech Revolution--And Why America Might Miss It (2019).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Networked Society
,
Communications Law
Type: Book
Abstract
The world of fiber optic connections reaching neighborhoods, homes, and businesses will represent as great a change from what came before as the advent of electricity. The virtually unlimited amounts of data we’ll be able to send and receive through fiber optic connections will enable a degree of virtual presence that will radically transform health care, education, urban administration and services, agriculture, retail sales, and offices. Yet all of those transformations will pale compared with the innovations and new industries that we can’t even imagine today. In a fascinating account combining policy expertise and compelling on-the-ground reporting, Susan Crawford reveals how the giant corporations that control cable and internet access in the United States use their tremendous lobbying power to tilt the playing field against competition, holding back the infrastructure improvements necessary for the country to move forward. And she shows how a few cities and towns are fighting monopoly power to bring the next technological revolution to their communities.
Mary Ann Glendon, 70 Años de la Declaración Universal de Derechos Humanos, Nuestro Tiempo, Jan. 2019, at 104.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Human Rights Law
Type: Article
Mary Ann Glendon, Alexis de Tocqueville, in Great French Christian Jurists 276 (Rafael Domingo ed., 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Religion & Law
,
Judges & Jurisprudence
,
Biography & Tribute
,
Legal History
Type: Book
Cass R. Sunsstein, Algorithms, Correcting Biases, Soc. Res. (forthcoming 2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Criminal Law & Procedure
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Judges & Jurisprudence
,
Networked Society
,
Science & Technology
Type: Article
Abstract
A great deal of theoretical work explores the possibility that algorithms may be biased in one or another respect. But for purposes of law and policy, some of the most important empirical research finds exactly the opposite. In the context of bail decisions, an algorithm designed to predict flight risk does much better than human judges, in large part because the latter place an excessive emphasis on the current offense. Current Offense Bias, as we might call it, is best seen as a cousin of “availability bias,” a well-known source of mistaken probability judgments. The broader lesson is that well-designed algorithms should be able to avoid cognitive biases of many kinds. Existing research on bail decisions also casts a new light on how to think about the risk that algorithms will discriminate on the basis of race (or other factors). Algorithms can easily be designed so as to avoid taking account of race (or other factors). They can also be constrained so as to produce whatever kind of racial balance is sought, and thus to reveal tradeoffs among various social values.
Duncan Kennedy, Authoritarian Constitutionalism in Liberal Democracies, in Authoritarian Constitutionalism (Helena Alviar & Günter Frankenberg eds., Edward Elgar forthcoming 2019).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Law & Political Theory
,
Comparative Law
,
European Law
Type: Book
Abstract
This chapter treats the form of authoritarian constitutionalism prevalent in Europe and the Western Hemisphere as an ideology, in the weak sense, an amalgam of tropes and rhetorics that allude to or evoke in an incoherent way two authoritarian traditions: a reactionary Catholic one and a fascist one. The ideology is one of the factors guiding legal interventions in liberal democratic constitutional orders that are also internally incoherent. Incoherence, along with the existence of conservative and progressive factions within the liberal democratic camp, creates multiple occasions for a hermeneutic of suspicion with respect to contemporary constitutional argument. In this situation, decision among legal alternatives requires a politics. As an example, even “court packing,” which is usually treated as a priori authoritarian, may in some circumstances be legally and politically justified in a liberal democratic framework. This approach contrasts with one that treats authoritarianism either as a coherent ideology or as signifying merely violation of liberal democratic norms.
T. Keith Fogg, Can the Taxpayer Bill of Rights Assist Your Clients?, Temp. L. Rev. (forthcoming 2019).
Categories:
Taxation
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Taxation - Personal Income
,
Taxation - Federal
Type: Article
Abstract
Congress has added a Taxpayer Bill of Rights (TBOR) to the Internal Revenue Code following the administrative adoption by the IRS of the identical slate of rights. The question for taxpayers and practitioners with respect to TBOR concerns its impact, if any, in seeking a remedy for certain IRS behavior. Practitioners have begun to argue for remedies based on the rights enumerated in TBOR. Facebook became one of the first taxpayers to seek to use TBOR to obtain a right that the IRS had otherwise denied. The Tax Court found that the remedy Facebook sought based on perceived rights in TBOR was not a remedy the court could provide. In the Facebook case the IRS followed the guidance set forth in a Revenue Procedure. Other taxpayers have also begun to test the waters with TBOR arguments. This paper analyzes several cases and several situations in which TBOR has arisen or might soon arise as the basis for seeking a remedy not otherwise available. The paper concludes that taxpayers will struggle to find a basis for remedy in TBOR when facing a specific statute, regulatory or even sub-regulatory guidance directing the IRS to take a specific path. TBOR could make a difference in situations in which the IRS has leeway in deciding what to do. The specific area in which the IRS has great leeway in deciding the course of action it will pursue falls in the collection of taxes. So much of collection is driven by judgment and policy that it presents one of the primary areas in which TBOR could apply to assist taxpayers in reaching the remedy that best suits their situation in balance with the needs of the IRS. The paper discusses some collection situations in which TBOR could make a difference. The other area where TBOR could make a difference is the formulation of regulatory and sub-regulatory guidance. The IRS should build a culture that embraces the goals of TBOR and uses them as it constructs its interactions with taxpayers. The paper discusses how this might happen. TBOR has moved past its infancy but not far. There is much to learn about how TBOR will impact tax administration. Litigation will help to move TBOR to where Congress intended it to be or help to move Congress to reshape TBOR into the impact statement it intended.
Cass R. Sunstein, Chevron Without Chevron, 2019 Sup. Ct. Rev. (forthcoming).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Statutory Interpretation
Type: Article
Abstract
Chevron v NRDC may well be the most important case in all of administrative law. It establishes a general principle, which is that agencies may interpret ambiguous statutory provisions, so long as their interpretations are reasonable. That principle is now under serious pressure. If the Court abandoned it, how would Chevron itself be decided? There are five possible approaches: (1) textualism; (2) purposivism; (3) resort to canons of construction; (4) use of Skidmore deference; and (5) validation of the agency’s decision, on the ground that no statutory provision prohibited it. In the context of Chevron, (1) and (2) run into serious problems, but (3), (4), and (5) are promising. The discussion suggests some general lessons for statutory interpretation and administrative law, and offers some cautionary notes for those who want to abandon the Chevron framework. Abandoning that framework would introduce high levels of confusion in the lower courts and the Supreme Court itself, and in all probability, the framework that would ultimately replace it would turn out to look a fair bit like that in Chevron itself.
Cass R. Sunstein, Chevron as Law, Geo. L.J. (forthcoming 2019).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Executive Office
,
Congress & Legislation
,
Separation of Powers
Type: Article
Abstract
Chevron v. NRDC, the foundation for much of contemporary administrative law, is now under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the executive branch. Some people think that the transfer is a recipe for a form of authoritarianism – and inconsistent with the proposition that it is the province of the judiciary to say what the law is. To assess such objections, the starting point is simple: Whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, there is a plausible argument that Chevron was wrong when decided; but the issue is intriguingly cloudy if the APA’s text is taken in its context. In these circumstances, Chevron should not be overruled. Doing so would introduce a great deal of confusion and increase the role of political judgments within the courts of appeals. Nonetheless, Chevron’s critics have legitimate concerns. Those concerns should be taken into account (1) by insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) by invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) by deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.
Robert H. Sitkoff, Fiduciary Principles in Trust Law, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff eds., Oxford Univ. Press forthcoming 2019).
Categories:
Banking & Finance
,
Property Law
Sub-Categories:
Fiduciary Law
,
Trusts
Type: Book
Andrew Manuel Crespo, Impeachment as Punishment, 13 Harv. L. & Pol’y Rev. (forthcoming 2019)(reviewing Laurence Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment (2018)).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
Type: Article
Abstract
In their recent book "To End a Presidency" Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question ("why impeach?") through the broader lens of criminal jurisprudence, which perennially confronts the related and familiar question: "why punish?" After assessing Tribe and Matz's arguments for and against impeachment along the familiar Benthamite and Kantian axes, the essay ultimately recasts the dilemma of impeachment as a dilemma for reconstructivist accounts of punishment itself: Does punishing a wrongdoer--including potentially the President of the United States--help society heal in the wake of serious criminal acts, or does the prospect of punishment only tear us further apart?
Jack Goldsmith & Shannon Mercer, International Law and Institutions in the Trump Era, Ger. Y.B. Int’l L. (forthcoming 2019).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
International Law
Type: Article
Abstract
This paper examines the widespread belief that the Trump administration’s attacks on international law and institutions are significantly harming the international legal order. Part I describes the actions Trump has taken. That is the relatively easy part. It is much harder to figure out the medium- and long-term impact of Trump’s actions. For the reasons offered in Part II, we think that in most respects it is still too early to tell. But we speculate that Trump’s biggest impact is likely to come as much from his verbal attacks on international law and institutions as from the material changes he has brought to them.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, 72 Q.J. Experimental Psychol. 3 (2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Mary Ann Glendon, Making the Case for Religious Freedom in Secular Societies, 32 J.L. & Religion 1 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
Type: Article
Abstract
This is the text of the opening keynote lecture delivered at the conference, “Is Religious Freedom under Threat?,” Christ Church, Oxford, May 23–25, 2018, convened by Oxford University's McDonald Centre for Theology, Ethics and Public Life and Emory University's Center for the Study of Law and Religion. It is truly an honor to deliver the opening lecture for this McDonald Conference titled “Is Religious Liberty under Threat?” Since it was only four years ago that I had given a talk on that subject for the Oxford Journal of Law and Religion’s Summer Academy, which built in turn upon my Harold Berman Lecture at Emory University two years before, I have had to give some serious thought to how I might avoid repeating myself. Yet when I looked back over what I said on those occasions, I wished that I had dwelt less upon the threats and more on the challenge of how to address them. What I would like to do in this lecture, therefore, is to offer some suggestions in the hope of stimulating discussion about how to make the case for religious freedom as a fundamental human right in today's increasingly secular liberal democracies.
Robert H. Sitkoff, Other Fiduciary Duties: Implementing Loyalty and Care, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., Oxford Univ. Press forthcoming 2019).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Frank I. Michelman, Political-Liberal Legitimacy and the Question of Judicial Restraint (Jan. 1, 2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
Supreme Court of the United States
Type: Other
Abstract
The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.
W. Nicholson Price II & I. Glenn Cohen, Privacy in the Age of Medical Big Data, 25 Nature Med. 37 (2019).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Information Privacy & Security
,
Networked Society
,
Medical Technology
Type: Article
Jack Goldsmith, Review of Harold Hongju Koh, The Trump Administration and International Law, Am. J. Int’l L. (forthcoming 2019).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
International Law
Type: Article
Abstract
This essay reviews Harold Hongju Koh, The Trump Administration and International Law (2018). Its main conclusion is that Koh overstates the influence of transnational legal process in checking President Donald Trump's impact the U.S. stance toward international law and institutions.
Nicole Summers, Setting the Standard for Proximate Cause in the Wake of Bank of America Corp. v. City of Miami, 97 N.C. L. Rev. (forthcoming 2019).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Housing Law
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
The Supreme Court’s recent opinion in Bank of America Corp. v. City of Miami has created fresh uncertainty around the interpretation of the Fair Housing Act. The Supreme Court held for the first time that there is a proximate cause requirement under the Fair Housing Act, but expressly declined to decide the standard for meeting that requirement. This Article responds to that open question. It contextualizes Bank of America Corp. within the Court’s growing body of statutory proximate cause doctrine, and takes the case as a jumping off point to address the broader question of how to determine the meaning of proximate cause in all statutory claims. The Article argues that the Supreme Court and lower courts must adopt a uniform analytical framework for the determination of proximate cause in statutory claims. The Article demonstrates that the Supreme Court’s failure to do so thus far has produced deep doctrinal incoherence, culminating in the Court’s inability to articulate a standard for proximate cause under the Fair Housing Act in Bank of America Corp. The Article proposes that courts uniformly apply the “scope of liability” framework as set forth in the recent Restatement (Third) of Torts. It contends that the scope of liability framework properly anchors proximate cause in the statutory scheme, ensures doctrinal determinacy, and prevents improper judicial legislation. The Article then applies this framework to arrive at the proper standard for proximate cause under the Fair Housing Act. Through extensive legislative history analysis, the Article concludes that the standard for proximate cause under the Fair Housing Act is satisfied where the harm caused by unlawful discrimination results from direct effects on the housing market and falls within one of the three core areas of congressional concern underlying the Act’s enactment.
Cass R. Sunstein, Sludge and Ordeals, Duke L.J. (forthcoming 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Government Benefits
Type: Article
Abstract
In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services; the problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. In principle, a serious deregulatory effort should be undertaken to reduce sludge, through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. In most cases, these defenses of sludge turn out to be more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often argue in favor of a neglected form of deregulation: sludge reduction. For both public and private institutions,“Sludge Audits” should become routine. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress.
Ayelet Gur & Michael Ashley Stein, Social Worker Attitudes Toward Parents with Intellectual Disabilities in Israel, Disability & Rehabilitation (forthcoming 2019).
Categories:
Discrimination & Civil Rights
,
Family Law
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Children's Law & Welfare
,
Foreign Law
,
Human Rights Law
Type: Article
Abstract
Purpose: United Nations human rights treaties and domestic law require social workers to support the parenting rights of persons with intellectual disabilities. Social workers are also required to protect the health and well-being of those clients’ children. This study explores the experiences, challenges, and complex attitudes of Israeli social workers regarding parenthood by their clients with intellectual disabilities. Methods: A qualitative method employed semi-structured interviews with twenty-one social workers. A thematic analysis identified major themes. Results: Social workers recognized the parental desires of clients with intellectual disabilities and acknowledged their role in supporting those individuals. Nevertheless, most of the social workers expressed negative perceptions regarding the right or capability of clients with intellectual disabilities to parent. Social workers thus felt the tension between their personal reservations and their professional duty to support these clients. Regardless of individual attitudes, social workers uniformly asserted that greater state and community support was needed to enable the parental capacity of their clients. Conclusions: In addition to increasing state and community support for parents with intellectual disabilities, additional training is needed for empowering social workers to act on behalf of these clients in Israel. Implications for Rehabilitation Social workers hold critical roles for parents with intellectual disabilities and are required to support their clients’ parenting while ensuring the health and well-being of their children. Israeli social workers balance negative or ambivalent attitudes regarding the capability of parents with intellectual disabilities against a desire to honor their duty to support these clients. State and community support for parents with intellectual disabilities must be increased. Additional training is needed for empowering social workers to act on behalf of these clients in Israel.
Jack Goldsmith, Sovereign Difference and Sovereign Deference on the Internet, 128 Yale L.J. F. 818 (2019).
Categories:
Technology & Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
,
Jurisdiction
,
Administrative Law & Agencies
,
Courts
,
Foreign Relations
,
International Law
,
Treaties & International Agreements
,
Cyberlaw
,
Networked Society
Type: Article
Abstract
This Response to Andrew Woods makes two points. First, building on one of Woods’s claims, and drawing on the work of Milton Mueller, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it raises questions about the efficacy of Woods’s normative theory of judicial comity.
Nikolas Bowie, The Government Could Not Work Doctrine, 105 Va. L. Rev. 1 (forthcoming 2019).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
For over two thousand years, conscientious people from Plato to Gandhi have grappled with the dilemma of how to respond when a government orders you to do something you disagree with — say, pay a tax that will fund a war. Perhaps the most famous answer comes from the book of Matthew, when Jesus of Nazareth declared, "Render . . . unto Caesar the things that are Caesar's, and unto God the things that are God's." One way to interpret this declaration contends that you should always comply with fairly imposed civil obligations — at least until you can persuade others to accommodate your views. A second argues that if conscience so dictates, you should disobey the government and accept whatever punishment it doles in return. Recently, a group of constitutional lawyers have offered a third option: Sue the government. Adopting a libertarian interpretation of the First Amendment's protection of free speech and religious exercise, these lawyers argue that it is presumptively unconstitutional for the government ever to put one's moral obligations in conflict with one's civil obligations. As evidence, they draw on cases such as West Virginia v. Barnette, in which the Supreme Court struck down a regulation that compelled objecting school children to recite the pledge of allegiance. In the past few years these lawyers have asked the Court to extend Barnette's logic to petitioners who object to birth control, labor unions, vaccinations, same-sex marriage, and all kinds of politically charged topics. The Supreme Court has been sympathetic to these lawyers, in one case declaring that the First Amendment generally "prevent[s] the government from compelling individuals to express certain views or pay subsidies for speech to which they object." The Court has even acted on this declaration to invalidate laws that tax public-sector employees and donate the revenue to politically active labor unions. But this declaration is wrong. Treating compulsory laws as presumptively invalid not only contradicts historical practice, it's also at odds with the Court's precedent in nearly every other constitutional context. The First Amendment, along with the rest of the Constitution, was adopted to create a functional government out of the embers of a failing state. For any government to function — especially in a politically and religiously pluralistic society like the United States — it must be able to compel residents to do all sorts of things a minority might disagree with, from paying taxes and obeying generally applicable laws to accepting conditions on public benefits. Accordingly, the Supreme Court has rejected claims brought under every clause of the First Amendment (and many other articles of the Constitution) whenever it has realized that "government would not work" were it constitutionally prohibited from compelling citizens to do or pay for things they might not like. Even the author of Barnette recognized the danger of converting the First Amendment into a suicide pact. This Article molds these Supreme Court moments of clarity into a coherent doctrine, which I call the "government could not work" doctrine. Analyzing a wide variety of cases, I conclude that objectionable compulsion, in and of itself, should not make a law presumptively unconstitutional, triggering the so-called strict scrutiny that the Court currently applies when a person objects to subsidizing the political activity of a labor union. As the Court has declared throughout its history — with a brief exception between about 1940 and 1980 — applying such strict scrutiny every time a person challenges a compulsory law would "cripple" the government. In other words, the First Amendment doesn't render American citizens uniquely exempt from the universal dilemma of having to decide whether to abide by a disagreeable law. The authors of the First Amendment wanted a government that tolerated dissent, not a government that would be incapacitated by it.
Adrian Vermeule, The Publius Paradox, 82 Modern L. Rev. 1 (2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Executive Office
,
Separation of Powers
,
National Security Law
,
Congress & Legislation
,
Politics & Political Theory
,
Federalism
Type: Article
Abstract
At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued ‘[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators’. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’, that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this ‘Publius Paradox’, I turn briefly to its implications, the main one being that constitutional law should be cast as a loosely‐fitting garment – particularly the executive component of the constitution and the scope of executive powers.
Mary Ann Glendon, The Spiritual Journey of Wallace Stevens, 22 LOGOS 19 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Law & Humanities
Type: Article
Cass R. Sunstein, Valuing Facebook, 3 Behav. Pub. Pol'y (forthcoming 2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Article
Abstract
In recent years, there has been a great deal of discussion of the welfare effects of digital goods, including social media. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, YouTube, and Instagram), found a massive disparity between willingness to pay (WTP) and willingness to accept (WTA). The sheer magnitude of this disparity reflects a “superendowment effect.” Social media may be Wasting Time Goods (WTG) – goods on which people spend time, but for which they are not, on reflection, willing to pay much (if anything). It is also possible that in the context of the WTP question, people may be giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers may be expressive, rather than reflective of actual welfare effects. At the same time, the WTA measure may also be expressive, a different form of protest, telling us little about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.
Nicholas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. (forthcoming 2019).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
A funny thing about the U.S. Constitution is that it’s written down. Words might seem like an obvious feature of a constitution, but they're notably missing from much of the constitution of the United Kingdom, the country from which the United States seceded. Historians have often assumed that the quirky American practice of putting constitutions into single documents has its origins in the corporate charters of the seventeenth-century trading companies that founded more than half of the thirteen original states. But, as historian Mary Bilder has written, it is surprisingly difficult to explain the change from corporate charter to modern constitution with precision and persuasive power. This Article attempts to do just that, telling the story of an eighty-year lawsuit that forced the Massachusetts Bay Company to treat its charter's terms as Gospel. Relying on original research of thousands of primary sources from the United States and United Kingdom spanning from 1607 through 1793, the Article presents an account of how a corporate charter evolved into a “Charter Constitution” in America while the British Constitution remained intangible. The Article demonstrates that written words became a defining feature of American constitutionalism a century before the American Revolution, and that this distinction between the American and British understanding of constitutions contributed to American independence. It also demonstrates that charter constitutionalism emphasized text but also included methods of interpretation that today might be described as purposivist or living constitutionalist.
Eli Y. Adashi & Glenn Cohen, The Ethics of Heritable Genome Editing: New Considerations in a Controversial Area, 320 JAMA 2531 (2018).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
David W. Kennedy, Law, Expertise and Global Political Economy, 23 Tilburg L. Rev. 109 (2018).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Law & Economics
,
International Law
,
International Humanitarian Law
,
Global Lawyering
,
Human Rights Law
Type: Article
Abstract
Professor David Kennedy’s 2018 Montesquieu Lecture considers the role of expert legal knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to describe the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. He explores how we can harness expert knowledge to remake an unjust world.
Mary Ann Glendon & Seth D. Kaplan, The Universal Declaration Turns 70, The American Interest (Dec. 19, 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Treaties & International Agreements
Type: Other
Christopher Bavitz, Sam Bookman, Jonathan Eubank, Kira Hessekiel & Vivek Krishnamurthy, Assessing the Assessments: Lessons from Early State Experiences In the Procurement and Implementation of Risk Assessment Tools (Berkman Klein Ctr Research Publ’n No. 2018-8, Dec. 14, 2018).
Categories:
Technology & Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Cyberlaw
Type: Other
Abstract
This piece endeavors to provide context for state and local officials considering tasks around development, procurement, implementation, and use of risk assessment tools. It begins with brief case studies of four states that adopted (or attempted to adopt) such tools early on and describes their experiences. It then draws lessons from these case studies and suggests some questions that procurement officials should ask of themselves, their colleagues who call for the acquisition and implementation of tools, and the developers who create them. This paper concludes by examining existing frameworks for technological and algorithmic fairness. The authors offer a framework of four questions that government procurers should be asking at the point of adopting RA tools. That framework draws from the experiences of the states we study and offers a way to think about accuracy (i.e., the RA tool’s ability to accurately predict recidivism), fairness (i.e., the extent to which an RA tool treats all defendants fairly, without exhibiting racial bias or discrimination), interpretability (the extent to which an RA tool can be interpreted by criminal justice officials and stakeholders, including judges, lawyers, and defendants), and operability (the extent to which an RA tool can be administered by officers within police, pretrial services, and corrections).
Comment on Proposed Standards and Procedures of the Office of Court Interpreter Services from Nicole Summers to Kim Wright, Executive Office of the Massachusetts Trial Court (Dec. 14, 2018) (on file with the Legal Services Center).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Courts
,
Administrative Law & Agencies
,
State & Local Government
,
Legal Services
Type: Other
Emily J. Blanchard & Mark Wu, Externalities and Agricultural Import Bans: Evaluating Regionalization Measures in Light of the Russia – Pigs Dispute (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2018/60, Dec. 14, 2018).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Agriculture Law
,
Trade Regulation
,
International Trade
Type: Other
Abstract
Article 6 of the SPS Agreement presents a series of interlinked obligations for importing and exporting countries of diseased agricultural products. The Russia – Pigs dispute raises the question of when an importing country is justified in imposing a ban on products from exporting countries unaffected by the disease, on the basis of the fact that the country is part of the same customs union as another country inflicted with the disease. This Article contends that four distinct classes of cross-border and cross-product externalities ought to play in an important role when assessing this question in the future. It discusses the possible roles to be played by bilateral, sequential, pass-through, and supply chain externalities in propagating the transmission of agricultural disease across borders through trade.
Lawrence B. Solum & Cass R. Sunstein, Chevron as Construction (Dec. 13, 2018).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.
Vicki Been, Deborah Rand, Nicole Summers & Jessica Yager, Implementing New York City’s Universal Access to Counsel Program: Lessons for Other Jurisdictions (NYU Furman Ctr. Pol'y Brief, Dec. 12, 2018).
Categories:
Legal Profession
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Housing Law
,
Poverty Law
,
Public Interest Law
,
Courts
,
State & Local Government
,
Legal Services
Type: Other
Anat Bracha, Alma Cohen & Lynn Conell-Price, The Heterogeneous Effect of Affirmative Action on Performance (NBER Working Paper No. w25322, Dec. 11, 2018).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Law & Economics
,
Law & Behavioral Sciences
,
Employment Discrimination
Type: Other
Abstract
This paper experimentally investigates the effect of gender-based affirmative action (AA) on performance in the lab, focusing on a tournament environment. The tournament is based on GRE math questions commonly used in graduate school admission, and at which women are known to perform worse on average than men. We find heterogeneous effect of AA on female participants: AA lowers the performance of high-ability women and increases the performance of low-ability women. Our results are consistent with two possible mechanisms—one is that AA changes incentives differentially for low- and high-ability women, and the second is that AA triggers stereotype threat.Bracha
Lucian A. Bebchuk & Scott Hirst, The Misguided Attack on Common Ownership (Dec. 11, 2018).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Investment Products
,
Securities Law & Regulation
,
Corporate Law
,
Corporate Governance
Type: Other
Abstract
This academic presentation is based on the slides we prepared for delivery by one of us at the Federal Trade Commission hearing on Competition and Consumer Protection in the 21st Century on December 6, 2018, which focused on common ownership. The slides discuss the implications of our research work for the common ownership debate. The research work whose implications we consider includes Bebchuk, Cohen, and Hirst, The Agency Problems of Institutional Investors (2017) (https://papers.ssrn.com/abstract=2982617) and Bebchuk and Hirst, Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy (2018) (https://papers.ssrn.com/abstract=3282794). We argue that the attack on common ownership is misguided.The claims of common ownership critics, we argue, fail to take into account how the agency problems of investment fund managers provide them with incentives to under-invest in stewardship and to be deferential toward the corporate managers of portfolio companies. Given these problems, policymakers should be primarily concerned that investment fund managers engage too little and not that they engage too much. The measures advocated by common ownership critics are not merely unnecessary but would be counterproductive; they could well discourage investment fund managers from stewardship activities that should be encouraged.
John C.P. Goldberg, You Can’t Spell “America” Without C A R, JOTWELL (Dec. 11, 2018) (reviewing Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest L. Rev. 293 (2018)).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
,
Torts - Negligence
,
Torts - Product Liability
,
Remedies
,
Litigation & Settlement
Type: Other
Lucian A. Bebchuk & Kobi Kastiel, The Lifecycle Theory of Dual-Class Structures (Dec. 18, 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
,
Corporate Law
Type: Other
Abstract
This academic presentation, based on our joint work on dual-class structures, was delivered by Lucian Bebchuk as his keynote address to the December 2018 ECGI-BIU conference on differential voting structures. The presentation focuses on the lifecycle theory of dual-class structure introduced in Bebchuk and Kastiel, The Untenable Case for Perpetual Dual-Class Stock, 2017 (https://ssrn.com/abstract=2954630). The presentation begins with discussion of precursor works to, and the motivation for developing, the lifecycle theory. The presentation then proceeds to describing the elements of the theory. In particular, it explains the reasons for expecting the efficiency benefits of dual-class structures to decline over time; for the efficiency costs to increase over time; and for controllers to choose to retain a dual-class structure even when it ceases to be efficient. The presentation also discusses a number of cases that vividly illustrate arguments advanced by the lifecycle theory. Among cases discussed are dual-class companies Viacom, CBS, and Facebook, as well as single-class companies Amazon, Microsoft and Yahoo!. We also explain that time-based sunsets can address the identified problems, and we discuss the design of, and objections to, such sunsets. Finally, we discuss the influence that our lifecycle theory has had on subsequent policy discourse and on empirical work testing the theory’s predictions. The presentation concludes that the lifecycle theory has solid theoretical foundations and is confirmed by recent empirical testing. We hope that the lifecycle theory that we introduced will continue to prove useful for researchers and policymakers and to contribute to the adoption of dual-class sunsets.
Laurence H. Tribe & Joshua Matz, To (Pretend to) Review Our Book, 132 Harv. L. Rev. F. 78 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Congress & Legislation
,
Executive Office
,
Politics & Political Theory
Type: Article
Noah Feldman, Justifying Diversity, N.Y. Rev. Books, Dec. 6, 2018, at 27.
Categories:
Discrimination & Civil Rights
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Paul C. Weiler, Gary R. Roberts, Roger I. Abrams, Stephen F. Ross, Michael C. Harper, Jodi S. Balsam & William W. Berry III, Sports and the Law: Text, Cases, and Problems (West Academic Publ'g 6th ed. 2018).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Gaming & Sports Law
,
Legal Education
Type: Book
Abstract
The sixth edition of this leading casebook explores legal issues in both professional and amateur sports, organized to provide instructors with flexibility to cover selected doctrinal areas or industry sectors. Extended treatment is given to the key subjects of labor, antitrust, intellectual property, and the law of private associations. The casebook also covers the unique office of the league commissioner and its special concerns with the “best interests of sports”; the contract, antitrust, and labor law dimensions of the player-labor market; the role of the player agent in a unionized industry; the economic and legal implications of agreements among league owners and responses to rival leagues; the system of college athletics as governed by the NCAA and subject to Title IX; and the operation of international Olympic sports. Key features include: Recent landmark Supreme Court decisions affecting the entire sports industry, including legalizing sports gambling (Murphy v. NCAA) and affirming trademark free speech (Matal v. Tam) Updated materials on sports league commissioner disciplinary authority and judicial review of sports league arbitration awards Updated materials on the business of sports, with exercises on the business dynamics of sports labor markets and on league decision-making about commercial practices Reorganized chapter on agent representation of the athlete, with new coverage of foundational principles of agency law Key decisions affecting college athletics, involving antitrust challenges to amateurism (In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation and Deppe v. NCAA) and penalties for rules infractions (UNC Public Infractions Decision) Expanded materials on the function, regulatory apparatus, and activities of the NCAA Reorganized chapter on international and Olympic sports, covering recent cases involving doping and hyperandrogenism Expanded materials on athlete health and safety, including claims related to concussions and prescription drug abuse.
Einer Elhauge, How Horizontal Shareholding Harms Our Economy - And Why Antitrust Law Can Fix It (Dec. 4, 2018).
Categories:
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Antitrust & Competition Law
,
Securities Law & Regulation
,
Shareholders
,
Corporate Law
,
Executive Compensation
Type: Other
Abstract
New economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be less sensitive to firm performance. The new empirical evidence includes two new cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding reduces the sensitivity of executive compensation to firm performance and increases the gap between corporate profits and investment. The new empirical evidence also includes two new industry studies that extend to the pharmaceutical industry the two prior industry studies finding that horizontal shareholding had anticompetitive effects in airline and banking markets. I also provide new analysis demonstrating that critiques of the airline and banking industry studies either conflict with the evidence or, when taken into account, increase the estimated adverse price effects from horizontal shareholding. I further provide new theoretical and factual explanations to show why, contrary to the claims of others, non-horizontal shareholder interests, vertical shareholdings, and index fund incentives do not prevent anticompetitive effects from horizontal shareholding. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102. I conclude by showing that horizontal shareholding not only lessens the market concentration that traditional merger law can tolerate, but also means that what otherwise seem like non-horizontal mergers should often be treated as horizontal. Those implications for traditional merger analysis become even stronger if we fail to tackle horizontal shareholding directly.
I. Glenn Cohen, Dov Fox & Eli Y. Adashi, Losing Embryos, Finding Justice: Life, Liberty, and the Pursuit of Personhood, 169 Annals Internal Med. 800 (2018).
Categories:
Health Care
,
Property Law
,
Consumer Finance
,
Civil Practice & Procedure
Sub-Categories:
Consumer Contracts
,
Torts - Negligence
,
Genetics & Reproduction
,
Health Law & Policy
,
Bioethics
,
Personal Property
Type: Article
Nancy H. Rogers, Robert C. Bordone, Frank E. A. Sander & Craig A. McEwen, Designing Systems and Processes for Managing Disputes (2d ed. 2018).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Legal Education
Type: Book
Abstract
Seven real-life case studies and numerous examples have students designing and implementing a process for resolving and preventing disputes where traditional processes have failed. This is a must-read for students and practitioners alike. New to the Second Edition: A chapter-long focus on facilitation skills for designers The addition of a seventh central case study related to processes following the Trayvon Martin shooting in Sanford, Florida A new appendix with an overview of mediation for students who have not taken a prior course in mediation An interesting new story by a Brazilian judge who used Designing Systems and Processes for Managing Disputes to create new processes to resolve multiple cases, some pending over 20 years, arising from lands taken to create a new national park A new question focusing on the issues related to designing court-connected mediation programs Updates throughout all chapters and the appendix
Michael Gregory & Emily Nichols, From the Outside In: Using a Whole-School Paradigm to Improve the Educational Success of Students with Trauma Histories and/or Neurodevelopmental Disabilities, in Trauma, Autism, and Neurodevelopmental Disorders: Integrating Research, Practice, and Policy 241 (Jason M. Fogler & Randall A. Phelps eds., 2018),
Categories:
Family Law
Sub-Categories:
Education Law
,
Children's Law & Welfare
Type: Book
Mark Tushnet, Book Review, 123 Am. Hist. Rev. 1671 (2018)(reviewing William Davenport Mercer, Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty (2017)).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
State & Local Government
,
Federalism
Type: Article
Nikolas Bowie, High Crimes Without Law, 132 Harv. L. Rev. F. 59 (2018).
Categories:
Constitutional Law
,
Criminal Law & Procedure
,
Government & Politics
,
Legal Profession
Sub-Categories:
Constitutional History
,
Executive Office
,
Congress & Legislation
,
Supreme Court of the United States
,
Politics & Political Theory
,
Legal History
Type: Article
Abstract
Professor Bowie has authored one of two Responses the Forum is running in December inspired by Professor Laurence Tribe and Joshua Matz’s recently published book on impeachment, To End a Presidency. These pieces are being published contemporaneously with Professor Michael Stokes Paulsen’s book review. Bowie offers a theory of the proper scope of the impeachment power that neither Paulsen nor Tribe and Matz embrace — namely, that Congress may only impeach for conduct that violated an extant criminal law. In other words, “high Crimes and Misdemeanors” can only refer to conduct that is in fact a crime or a misdemeanor, and impeachment is best understood as a criminal, rather than civil, process. This was the theory articulated by then-former Supreme Court Justice Benjamin Curtis as he defended President Andrew Johnson from impeachment, and Bowie asserts that Curtis’s theory has been right all along. Among his many arguments, Bowie closes with a practical one: Insisting that impeachment be grounded in positive criminal law is the most effective way to ensure that, both now and in the future, it does not become a mere political weapon.
Kenneth W. Mack, Second Mode Inclusion Claims in the Law Schools, 87 Fordham L. Rev. 1005 (2018).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Discrimination
,
Legal Education
Type: Article
Abstract
During the past half-decade, law school student demands for changes in legal education to address issues of diversity and inclusion have both proliferated and grown insistent. Although the demands are somewhat varied, they have sometimes stretched far beyond the admission and hiring of more students and faculty from minority groups. Students have advocated for basic changes in the way that law schools operate in order to make them more inclusive of groups that have been historically marginalized within these institutions.
Mark J. Roe, Stock Market Short-Termism’s Impact, 167 U. Pa. L. Rev. 71 (2018).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Economics
,
Financial Markets & Institutions
,
Venture Capital
,
Risk Regulation
,
Corporate Governance
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
Stock‐market–driven short‐termism is crippling the American economy, according to legal, judicial, and media analyses. Firms forgo the R&D they need, cut capital spending, and buy back their own stock so feverishly that they starve themselves of cash. The stock market is the primary cause: directors and executives cannot manage for the long term when their shareholders furiously trade their company’s stock, they cannot make long‐term investments when stockholders demand to see profits on this quarter’s financial statements, they cannot even strategize about the long term when shareholder activists demand immediate results, and they cannot keep the cash to invest in their future when stock market pressure drains away that cash in stock buybacks. This doomsday version of the stock‐market–driven short‐termism argument entails economy‐wide predictions that have not been well‐examined for their severity and accuracy. If the scenario is correct and strong, we should first see sharp increases in stock trading in recent decades and more frequent activist interventions, and these increases should be accompanied by (1) sharply declining investment spending in the United States, where large firms depend on stock markets and where activists are important, as compared to advanced economies that do not depend as much on stock markets, (2) buybacks bleeding cash out from the corporate sector, (3) economy‐wide R&D spending declining from what it should be, and (4) a stock market unwilling to support innovative, long‐term, technological firms. These are the central channels from stock‐market–driven short‐termism to overall economic degradation. They justify corporate law policies that seek to prevent these outcomes. But these predicted economy‐wide outcomes are either undemonstrated, implausible, or untrue. Corporate R&D is not declining, corporate cash is not bleeding out, and the world’s developed nations with neither American‐style quarterly oriented stock markets nor aggressive activist investors are investing no more intensely in capital equipment than the United States. The five largest American firms by stock market capitalization are tech‐oriented, R&D intensive, longer‐term operations. The economy‐wide picture is more one of capital markets moving capital from larger, older firms to younger ones; of a postindustrial economy doing more R&D than ever; and of an economy whose investment intensity depends on overall economic activity, not stock market trading nor hedge fund activism. True, the economy‐wide data could hide stock market hits that hold back R&D from increasing more and that weaken American capital spending more than is fitting for a post‐industrial economy. But if so, these effects have not been shown and several seem implausible. Hence, the calamitous form of the stock‐market–driven short‐termist argument needs to be reconsidered, recalibrated, and, quite plausibly, rejected. Then, last, comes the broadest question: why has a view that lacks strong economy‐wide evidentiary support become the rare corporate governance issue that attracts attention from the media, political players, policymakers, and the public—and that is widely accepted as true? I suggest why in this paper’s final part.
Albert H. Choi & Kathryn E. Spier, Taking a Financial Position in Your Opponent in Litigation, 108 Am. Econ. Rev. 3626 (2018).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Law & Economics
Type: Article
Abstract
Before filing suit, a plaintiff can take a financial position in a defendant firm. A short position benefits the plaintiff by transforming a negative expected-value claim into a positive expected-value one and by enhancing the claim's settlement value. If the capital market is less than strong-form efficient, the plaintiff also benefits directly from the decline in the defendant's stock price. When the defendant is privately informed about the case's merits, bargaining failures can arise. While aggressive short-selling benefits the plaintiff at the expense of the defendant, moderate levels of short-selling can benefit the defendant and raise the settlement rate.
Randall Kennedy, The Confounding Truth About Frederick Douglass, Atlantic, Dec. 1, 2018, at 36 (reviewing David W. Blight, Frederick Douglass: Prophet of Freedom (2018)).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Legal Profession
Sub-Categories:
Race & Ethnicity
,
Politics & Political Theory
,
Legal History
,
Biography & Tribute
Type: Article
Vicki C. Jackson, The Democratic Deficit of United States Federalism? Red State, Blue State, Purple?, 46 Fed. L. Rev. 645 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Federalism
,
Politics & Political Theory
,
State & Local Government
Type: Article
Abstract
Aspects of an entrenched constitution that were essential parts of founding compromises, and justified as necessary when a constitution was first adopted, may become less justifiable over time. Is this the case with respect to the structure of the United States Senate? The US Senate is hardwired in the Constitution to consist of an equal number of Senators from each state—the smallest of which currently has about 585,000 residents, and the largest of which has about 39.29 million. As this essay explains, over time, as population inequalities among states have grown larger, so too has the disproportionate voting power of smaller-population states in the national Senate. As a result of the ‘one-person, one-vote’ decisions of the 1960s that applied to both houses of state legislatures, each state legislature now is arguably more representative of its state population than the US Congress is of the US population. The ‘democratic deficit’ of the Senate, compared to state legislative bodies, also affects presidential (as compared to gubernatorial) elections. When founding compromises deeply entrenched in a constitution develop harder-to-justify consequences, should constitutional interpretation change responsively? Possible implications of the ‘democratic’ difference between the national and the state legislatures for US federalism doctrine are explored, especially with respect to the ‘pre-emption’ doctrine. Finally, the essay briefly considers the possibilities of federalism for addressing longer term issues of representation, polarisation and sustaining a single nation.
Eli Y. Adashi & Glenn Cohen, The Lumbering Crawl Toward Human Germline Editing, 46 J.L. Med. & Ethics 1010 (2018).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
Abstract
A review of the article "Untangling the Promise of Human Genome Editing" by Professor K. Drabiak, which appears in the same issue of the journal, is presented, and it mentions germline gene editing, Mitochondrial Replacement Therapy, and an appropriations-related U.S. Congressional Rider.
D. James Greiner, The New Legal Empiricism & Its Application to Access-to-Justice Inquiries, 148 Daedalus 64 (2018).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Criminal Evidence
,
Criminal Prosecution
,
Evidence
,
Practice & Procedure
,
Empirical Legal Studies
,
Courts
,
Judges & Jurisprudence
,
Legal Reform
,
Legal Services
Type: Article
Abstract
The United States legal profession routinely deals with evidence in and out of courtrooms, but the profession is not evidence-based in a scientific sense. Lawyers, judges, and court administrators make decisions determining the lives of individuals and families by relying on gut intuition and instinct, not on rigorous evidence. Achieving access to justice requires employing a new legal empiricism. It starts with sharply defined research questions that are truly empirical. Disinterested investigators deploy established techniques chosen to fit the nature of those research questions, following established rules of research ethics and research integrity. New legal empiricists will follow the evidence where it leads, even when that is to unpopular conclusions challenging conventional legal thinking and practice.
Rosalind Dixon, Ron Levy & Mark Tushnet, Theories and Practices of Federalism in Deeply Divided Societies, 46 Fed. L. Rev. 481 (2018).
Categories:
Government & Politics
,
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Federalism
,
Comparative Law
Type: Article
Frank I. Michelman, ‘Constitution (Written or Unwritten)’: Legitimacy and Legality in the Thought of John Rawls, 31 Ratio Juris 379 (2018).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In what he called "the liberal principle of legitimacy," John Rawls proposed that coercive exercises of political power can be justified to free and equal dissenters when "in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse . . . ." Does "unwritten constitution" there refer to empirical regularities of political practice (as opposed to normative rules and standards)? To norms that subsist only as custom but not as law? To norms that subsist as common law but not as code law? Which interpretation is best?
David Rosenberg, Anne Brown, Jaehyun Oh & Benjamin Taylor, A Plan for Reforming Federal Pleading, Discovery, and Pretrial Merits Review, 71 Vand. L. Rev. 2059 (2018).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Litigation & Settlement
,
Courts
Type: Article
Abstract
We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to fully disclose discoverable matter to which they have exclusive or superior practical access ("asymmetric information"), but only if the initiating party's pleading makes a summary judgment-proof showing on all elements of their claims or defenses that are unaffected by the information asymmetry. Discovery, if any, would generally be deferred to the postpleading stage and restricted to court-approved, targeted use as may be needed for purposes of facilitating resolution of cases by summary judgment, settlement, or trial preparation. Compared to the current regime, the reformed pretrial process should enable courts and parties to resolve more cases on the merits-more cheaply, quickly, and reliably-thus increasing deterrence and other social benefits from the use of civil liability to enforce the law. Courts in this country, including "Mandatory Initial Discovery" pilot projects, launched by the Federal Judicial Center last year, and abroad are testing the benefits of affirmative-disclosure reforms that resemble what we propose in this Article.
Mark Tushnet, Institutions Protecting Democracy: A Preliminary Inquiry, 12 Law & Ethics Hum. Rts. 181 (2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Separation of Powers
,
Elections & Voting
,
Corruption
,
Politics & Political Theory
,
Government Accountability
,
Comparative Law
,
Foreign Law
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Robert Mnookin, The Jewish American Paradox: Embracing Choice in a Changing World (PublicAffairs 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Jewish Law
Type: Book
Abstract
Jews in America are in a period of unprecedented status and impact, but for many their identity as Jews--religiously, historically, culturally--is increasingly complicated. Many are becoming Jews without Judaism. It appears success and acceptance will accomplish what even the most virulent anti-Semitism never could---if not the disappearance of Jews themselves, the undermining of what it means to be Jewish. In this thoughtful, personal, deeply-reasoned book, Robert Mnookin explores the conundrums of Jewish identity, faith and community in America by delving deep into Jewish history, law, and custom. He talks to rabbis, scholars, and other Jews of many perspectives to explore the head, heart, and heritage of Judaism and confronts key challenges in the Jewish debate from the issue of intermarriage to the matter of Israeli policies. Mnookin shares provocative stories of the ways American Jews have forged (or disavowed) their Jewish identity over the past half-century, including his own to answer the standing question: How can Jews who have different values, perspectives, and relationships with their faith, keep the community open, vibrant, and thriving?