Recent Submissions

  • The University in the Mirror of Justices

    Sitze, Adam (2022)
    In its 1915 Declaration of Principles on Academic Freedom and Tenure, the American Association of University Professors (AAUP) set forth a limited analogy between the professoriate and the judiciary. The purpose of this article is to explore this analogy’s genesis, basis, implications, and limits. Its claim is that the judicial analogy deserves renewed attention and consideration in the contemporary debate over the future of academic freedom.
  • Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism

    Handelsman Shugerman, Jed (2022)
    The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed “executive powers” (like removal) that would make a President stronger than a king.
  • Resisting Renoviction and Displacement Through Cultural Land Trusts: Art and Performance Spaces, Pop-Ups, DIYs, and Protest Raves in Vancouver

    Ross, Sara (2022)
    This Article draws on ethnographic fieldwork to explore the use of cultural land trusts as local urban resistance to the displacement of arts and culture spaces in Vancouver. Cultural land trusts shift power back to relationally marginalized and displaced communities whose voices frequently fail to figure equitably within decision-making processes affecting their urban landscape. Cultural land trusts draw on the community land trust and community ownership structure with the goal of preserving affordable access to land and space for arts and culture in the city. As previously marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work spaces for the arts sector are becoming less available. Their absence threatens the economic and cultural potential of art and the physical dimensions necessary for the sustainability of urban art and culture.
  • Legal Principles, Law, and Tradition

    Jiménez, Felipe (2022)
    Legal reasoning and legal discourse take place within historical traditions that develop over time. Law is characterized by the authoritative presence of those historical traditions. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. These social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the moral reasoning of legal participants—all of which have been mistakenly left aside by many legal positivists and their usual focus on coercive institutions. I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The Hart-Dworkin debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by le al positivism, is entirely consistent with the existence of legal principles.
  • Judicial Solidarity?

    Farbman, Daniel (2022)
    We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of the resistance. He argued that making Thoreau’s theory of change work required sympathetic judges to enforce the law to expose its injustice. From this colloquy between judge and activist, I draw the beginnings of a counter- narrative of how judges may strive towards (if not achieve) solidarity with resistance movements. Judges, like any other institutional actor, have the capacity and perhaps the obligation to be strategic about how they act within and against the social movements that find their ways into their courtrooms.
  • A Better Guard for the Henhouse: Should Creditors’ Committees Control Estate Litigation?

    Ellis, Justin; Yeh, Ryan (Yale Journal on Regulation Online Bulletin, 2022)
    In October 2021, Senator Elizabeth Warren and several cosponsors introduced a revised version of the Stop Wall Street Looting Act. First introduced in 2019, the proposed legislation targets a range of perceived abuses by private equity firms ranging from the carried interest tax “loophole” to the lack of risk-retention requirements for securitized debt. Among several new proposals to stop the “looting” of portfolio companies is one of particular interest to bankruptcy practitioners: giving unsecured creditors’ committees the exclusive right to bring or settle certain lawsuits in bankruptcy.
  • Countering Complexity's Corporate Bias: Tax Simplification as a Strategy to Reduce Profit Shifting in the African Extractive Sector

    Hirschel-Burns, Tim (2022)
    Despite their immense natural resource wealth and their intense need for revenue, African governments collect little revenue from the extractive sector. One significant reason for this revenue shortfall is that multinational corporations operating in the extractive sector use profit shifting strategies to artificially reduce their tax bills. These companies can typically afford large numbers of highly skilled lawyers and accountants. In contrast, African tax authorities are often highly under-resourced and undertrained. This Note argues that legal reforms that simplify tax administration would put African tax authorities and multinational corporations on a more level playing field. Simpler tax rules that rely on easily verifiable standards and reduce administrative burdens would reduce multinational corporations’ ability to exploit complexity to shift profits, in turn providing much-needed tax revenue that could be used for poverty alleviation and economic development.
  • The Reasonable Intelligence Agency

    Lubin, Asaf (2022)
    Article 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces. But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence errors that resulted in calamitous civilian casualties. In this paper, I look at five such case studies, spanning various historical periods, geographical zones, and belligerent parties. Examining these cases, this Article makes the claim that faults in wartime intelligence production are not inevitable as is often presumed and that it is for a lack of specific regulation within the treatises of international humanitarian law (IHL) that they occur at the rate that they do. Tribunals and military manuals guide us to rely on the “reasonable commander” test in determining the lawfulness of a particular strike. Yet, in the process we overlook the fact that any reasonable commander will turn to her “reasonable intelligence agency”—the contours of this standard are conspicuously under- defined. This paper takes a first step at proposing such a standard, a new duty of care, based on both historical analysis and emerging best practices. In so doing the paper proposes a path forward for addressing the accountability gap that permeates contemporary IHL as it relates to state responsibility for wartime errors and mistakes.
  • The U.N. Convention on the Rights of Persons with Disabilities and the Global South

    Harpur, Paul; Ashley Stein, Michael (2022)
    Despite the many successes of the U.N. Convention on the Rights of People with Disabilities, the treaty has yet to be as influential as it ought to be for eighty percent of the world’s more than one billion disabled people living in the Global South (or, developing world) relative to those living in the Global North (or, developed world). This Article critiques the manner in which the trajectory of the drafting process tilted from Global South priorities and perspectives toward those of Global North States and Disabled Peoples’ Organizations (DPOs). This is illustrated by the pervasively developed world view that prioritized the role of deinstitutionalization over family support when construing the right to independent living in the community, while also evincing an almost total disdain for many developing world considerations, including the rights to clean water, sanitation, and hygiene and the removal of landmines. These power imbalances could have been mitigated, if not rectified, by the Committee on the Rights of Persons with Disabilities (CRPD Committee), the body tasked with monitoring the treaty. The CRPD Committee is required to be geographically representative and inclusive, and is elected and guided by the Conference of States Parties to the CRPD, which itself is comprised by a majority of developing states; consequently, the Committee’s members have been chosen predominately from the Global South. Despite opportunities for responding to concerns relevant to the developing world through Concluding Observations (COs), the CRPD Committee has made only tentative and uneven efforts to advance the rights of persons with disabilities living in the Global South. We therefore propose constructive avenues through which, in fulfilment of its institutional duty, the Committee can and should make the CRPD increasingly responsive to the Global South and thus more truly representative of the vast majority of persons with disabilities worldwide. In addition to honoring its governance mandate, doing so would help mitigate the prevailing bias in human rights discourse and practice favoring the Global North.
  • U.S. Foreign Relations Law from the Outside In

    Scoville, Ryan M. (2022)
    Arguments in the field of U.S. foreign relations law typically proceed from the inside out: Legal actors focus on internal (domestic) sources of authority to reach conclusions with significant external (international) implications. The text and structure of the Constitution, case law, assessments of institutional competency, original meaning, and historical practice thus dominate debates about treaty- making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the legitimate modalities of legal analysis and helps to ensure that the law reflects national values. Yet inside-out arguments overlook a critical fact: the practical merits of U.S. foreign relations law often depend on whether and how this law is understood abroad. In other words, the nature and extent of foreign governmental knowledge of U.S. foreign relations law significantly affect the law’s ability to advance U.S. national interests, but there is neither theoretical nor empirical scholarship on the stakes or condition of such knowledge. Nor are there official U.S. policies to ascertain or account for this form of foreign knowledge. In these circumstances, American legal actors cannot fully apprehend whether the law is well designed and applied to achieve its purposes. This Article elaborates on these issues to develop an “outside in” approach to U.S. foreign relations law. The Article begins by explaining the value of meta- knowledge—domestic knowledge of foreign knowledge—of U.S. foreign relations law. The Article then uses original empirical research to generate meta- knowledge. That research includes an immersive case study on Japan, where I collected academic publications, searched newspaper archives, obtained government records under Japan’s freedom-of-information act, and interviewed dozens of scholars and government officials to triangulate Japanese understandings of U.S. foreign relations law. The Article concludes by laying out an agenda to cultivate additional meta-knowledge, reevaluate the law’s practical merits in light of epistemic conditions, and optimize foreign sophistication through legal and policy reforms.
  • Presidential Signing Statements in the Federal Bureaucracy

    Feinzig, Joshua M. (2022)
    This Note examines the relationship between presidential signing statements and administrative decision-making over the Obama and Trump presidencies and from a variety of institutional angles, updating previous studies rooted in a narrow set of observations from the mid-2000s. It identifies occasions where presidents, agencies, and other Executive Branch actors have referenced statements in the course of justifying inactions, rules and regulations, and legal characterizations of executive entities. In moving the focus beyond a strict causation approach to measuring influence, which suffers from proof limitations and indeterminacy, the Note offers a more modest formulation of statements’ contextual and atmospheric role in shaping bureaucratic decision-making. It also brings these observations into conversation with debates over the interpretative uses of statements in separation-of-powers disputes.
  • The Costs of Banks Engaging in Non-Banking Activities: A Case Study

    Stevens, Reid B.; Zhang, Jeffery Y. (2022)
    The century-long separation of banking and commerce enshrined in U.S. law has weakened in recent decades. The academic literature has thus far focused mainly on conceptual benefits and costs of the trend, arguing that the integration of banking and commerce might lead to efficiency gains through diversification in a greater number of distinct business lines, but that it also might impair the safety and soundness of the banking system, weaken market integrity, and lead to an excessive concentration of economic power. Our Article contributes to the debate by empirically examining an important episode in the U.S. commodities market following the 2008-2009 financial crisis, when financial institutions sought to take advantage of depressed commodity prices by amassing unprecedented metals inventories. From 2010 through 2014, as financial institutions held over half of the total U.S. aluminum stock in Detroit warehouses, the time it took to remove metal from warehouses increased from days to years and the regional price of aluminum skyrocketed—a surreal phenomenon because aluminum is one of the most actively traded commodities in the world and is used in the production of industrial goods from beverage cans to cars and airplanes.
  • Defining Crime, Delegating Authority—How Different Are Administrative Crimes?

    Richman, Daniel (2022)
    As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking—to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty—not the abstract “liberty” said to be protected by the separation of powers, but rather the lived liberty gained through careful and accountable criminal lawmaking that is free from the pathologies that have bedeviled federal criminal law for more than a century—administrative crimes are normatively quite attractive.
  • A Sober Look at SPACs

    Klausner, Michael; Ohlrogge, Michael; Ruan, Emily (2022)
    Special Purpose Acquisition Companies (SPACs)—touted as a better alternative to an IPO for taking a company public—have become the next big thing in the securities markets. This Article analyzes the structure of SPACs and the costs embedded in that structure. We find that costs embedded in the SPAC structure are subtle, opaque, higher than has been previously recognized, and higher than the cost of an IPO. Although SPACs raise $10.00 per share from investors in their IPOs, by the time a SPAC merges with a private company to take it public, the SPAC holds far less in net cash per share to contribute to the combined company. For SPACs that merged during our primary sample period of January 2019 through June 2020, mean and median net cash per share were $4.10 and $5.70, respectively. Between June 2020 and November 2021, net cash per share was somewhat higher but far below $10. We find that SPAC costs are not borne by the companies they take public, but instead by the SPAC shareholders who hold shares at the time SPACs merge. These investors experience steep post-merger losses, while SPAC sponsors profit handsomely. This Article concludes by suggesting that the SEC promulgate disclosure requirements specific to SPAC mergers that make clear SPACs’ costs and sponsors’ incentives, and that equalize regulatory preferences that SPACs enjoy compared to IPOs.
  • Common Ownership: Do Managers Really Compete Less?

    Fox, Merritt B.; Patel, Menesh S. (2022)
    This Article addresses an important question in modern antitrust: when large investment funds have holdings across an industry, is competition depressed? The question of the impact of common ownership on competition has gained much attention as the role of institutional shareholding has grown, with the funds of the three largest management companies holding in aggregate approximately 21% of the shares of a typical S&P 500 firm. It is a source of acute disagreement among scholars and policymakers, with some who believe common ownership does depress competition seeking antitrust law reforms that would significantly constrain how investment funds operate. Neglected in this vigorous debate, however, is a careful analysis of how the persons who in the first instance actually make the decisions that determine an industry’s competitiveness—firm managers—would act differently in the presence of common ownership. In essence, even if the common owners were to pressure firms to compete less, how, if at all, would that change the structure of incentives within which these managers work?
  • Public Compensation for Public Enforcement

    Cox, Prentiss; Peterson, Christopher L. (2022)
    Public enforcement actions frequently result in the distribution of money to people affected by violations of market protection laws. This “public compensation” returns billions of dollars to consumers, investors, and others each year. The law of public compensation appears confusing at first impression because of inconsistent use of nomenclature and conceptual confusion. However, courts have developed a discernible set of principles that allow for presumptions and loosened proof standards in awarding this relief. This buried, but clear, doctrine held for decades despite repeated challenges by business defendants. Supreme Court decisions in Liu v. SEC1 in June 2020 and FTC v. AMG Capital Management, LLC2 in April 2021 have unsettled the law. This Article offers two contributions to the development of the law of public compensation. First, we analyze decades of judicial decisions across federal and state public enforcement agencies and identify consensus legal principles for awarding two different forms of public compensation: disgorgement and public restitution. We extend the less-developed doctrine of public restitution by suggesting a proportionality test to provide guidance for more difficult cases. Second, we propose legislation to create uniform statutory authority for public enforcers that would reverse restrictions that have been or may be imposed on public compensation by recent and pending Supreme Court decisions. Both the doctrine and the proposed legislation are grounded in the unique position and authority of public enforcers, including discretion to select between civil penalties and public compensation as monetary remedies, as well as the deterrence rationale of public enforcement. An appendix includes model legislation Congress could adopt to clarify and restore public compensation authority across enforcement agencies.
  • Bankruptcy Process for Sale

    Ayotte, Kenneth; Ellias, Jared A. (2022)
    The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process sale.” We model two situations where process sales raise bankruptcy policy concerns: (1) when a senior creditor leverages the debtor’s need for financing to lock in a preferred outcome at the outset of the case (“plan protection”); and (2) when a senior creditor steers the case to protect its claim against litigation (“entitlement protection”). We show that both scenarios can lead to bankruptcy outcomes that fail to maximize the value of the firm for creditors as a whole. We study a new dataset that uses the text of 1.5 million court documents to identify creditor conflict over process sales, and our analysis offers evidence consistent with the predictions of the model.
  • CATV Franchising in New Jersey

    Leone, Richard (1972-01-01)
    For more than a decade, while Congress and the FCC were debating the big issues of national communications policy with broadcasters and cable television executives, thousands of municipalities quietly made decisions that may decide much of the future of broadband communications. With scant public notice, local officials bestowed lucrative, long-term franchises which set forth terms and conditions for the development of CATV for decades to come.
  • Ownership Policy and the Cable Industry

    Smith, Ralph (1972-01-01)
    Three patterns are emerging in the ownership of cable television systems in the United States. First, ownership is concentrating in fewer and fewer hands. Second, cable systems are increasingly owned by companies that own other types of communications media, or own sources of programming material, or own firms that are actual or potential manufacturers of cable hardware. Third, ownership by non-profit educational, cultural, civic, and community groups, or by minority groups, is being · excluded in the nation's major' cities and metropolitan areas by the economics of cable system construction and financing.
  • Cops in the Courts I: Police Misconduct Litigation

    Harmon, Sasha (1972-01-01)
    Police brutality and police harassment are crimes. Ironically, they are probably prompted or encouraged by a widespread public concern with "law and order," with stopping "crime in the streets." Much of police misconduct may stem from a desire by police to Jive up to their own and the public's image of them as tough crime stoppers; they may act overzealously to detect and apprehend wrongdoers.

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