Why should borders matter to the legal field of parenthood? The sustained reification of the institution of Family requires borders—spatial, legal, and symbolic—that demand the exclusion of those who fail to adhere to its norms. Yet, as the present article exposes, this institution’s borders can also become a terrain in which new forms of agency and beneficial processes emerge, inviting a reconsideration of the traditional paradigms that sustain that institution. This article examines this dual understanding of the role of borders and assesses the transformative costs and trade-offs of crossing them. To pursue this inquiry, it focuses on the longstanding struggle of gay Israeli men to become parents via surrogacy, and contextualizes the trajectory of this struggle across different geopolitical scales, through the lens of “border-as-process”. This “bordering” lens reveals how borders—in their opening, closing, and transgressing—create new relations and offer new possibilities for legal and institutional change.

Tangible environmental resources such as land and water have been the object of property rights and traded in markets for millennia. In a development largely unnoticed by legal scholars, technology now allows a new class of environmental resources that are much harder to see and touch to be measured and potentially sold—environmental attributes. Some of these resources have already been partially packaged into property rights for sale by some governments and private actors, such as actual and avoided carbon emissions, and the environmental benefits of renewable power and electric cars. However, other resources, such as avoided water use, remain unpropertized. Trading environmental attributes can help to achieve important societal objectives, such as decarbonizing the energy system, although there are also criticisms of using markets for these goals. This Article emphasizes that property rights need to be created in environmental attributes if policymakers and private actors wish to enlist markets to achieve societal goals. The Article explains the steps involved in creating property rights in environmental attributes. Drawing on the approaches already used to create property rights in some of these attributes, the Article identifies a menu of options for establishing property rights in attributes that currently can be measured and those that technology will allow to be isolated in the future. In addition, it applies this menu to recommend a first-in-time rule for establishing property rights in avoided electricity use from energy-efficient appliances and other energy saving measures, a prominent example of the recently recognized class of environmental attributes. Recognizing society’s growing interest in harnessing newer environmental attributes, this Article concludes that markets in such attributes could expand if the rules for initially allocating these resources were clarified.

Behavioral law and economics (“BLE”)—arising from the insight that people make recognizable, systematic mistakes—has revolutionized policymaking. For example, in governments around the world, including the US, teams of experts seek to harness these insights, promising to do things like increase retirement savings. But there is a problem: economic experts do not look or think like the rest of the population. Their demographics and policy views are deeply unrepresentative. This would be less troubling if the experts were merely helping people pursue the behavior that the people themselves would undertake, as was the case in traditional law and economics. However, the whole point of behavioral economics is that such behavior is often not in people’s interest. Rather, in making judgments about the right policy, BLE has erected a new, shaky structure, based on ad hoc and often unstated normative assumptions. The result risks merely enacting the policy preferences (or biases) of unrepresentative experts and thereby distorting policymaking. We propose a new approach—democratic BLE—in which behavioral economists, rather than dictating what the right policy or action is, instead inform representative samples of ordinary people about the evidence, including specifically about their own behavioral biases, and let them decide for themselves. Those decisions, rather than experts’ opinions alone, then inform policymakers. Our approach harnesses the insights of behavioral economics, but in a way that lets the people themselves, rather than the behavioral expert, be the arbiter of the good life.

The “California Effect” is a recurring trope in discussions about regulatory interdependence. This effect predicts that businesses active in multiple jurisdictions sometimes adopt the strictest regulatory standards that they face in any jurisdiction globally, even if the jurisdiction’s law does not require global compliance. As the argument goes, California Effects often occur because firms find it less expensive to comply with the most stringent standard everywhere than to provide different products to consumers in different jurisdictions based on the relevant local standards. There is a substantial literature that assumes the existence of such Cost-Based California Effects both at the interstate level in the United States and the international level, where they often appear in connection with the EU’s regulatory activities under the moniker “Brussels Effect.” However, empirical evidence documenting these effects’ existence and strength is scarce. This Article makes two contributions. On a theoretical level, it argues that Cost-Based California Effects should be treated separately from other forms of cross-jurisdictional influence, as their normative implications differ. On an empirical level, it reports results from a case study investigating the existence of these effects in data privacy law, a field in which they have been said to be particularly influential. The analysis tracks changes in almost 700 webpages’ privacy policies in order to reveal the extent to which EU law (which is usually described as comparably stringent) influences transactions between U.S. online services and consumers. The analysis covers two years starting in November 2017, a period that saw the enactment of a new, sweeping data privacy law in the EU. Contrary to what many assume, the analysis reveals that most U.S. online services treat U.S. consumers and EU consumers differently, with EU consumers enjoying higher levels of protection. This result indicates that the impact of EU law on the operations of U.S. online services is limited. Moreover, it suggests that Cost-Based California Effects might be less important than is commonly assumed, at least in data privacy law.

Indirect investor protection makes investing in most public securities safe even without understanding their terms or the underlying business. Special Purpose Acquisition Companies (SPACs) disable this protection by offering two alternative payoffs from the same security, the SPAC share, in the de-SPAC process: the redemption value, or a share in the post-de-SPAC entity. The former is usually higher and chosen by sophisticated repeat players, while unsophisticated investors elect the latter or receive it by default. Before the de-SPAC process, the SPAC share price reflects the higher payoff, such that unsophisticated investors systematically overpay. This overpayment is captured, directly or indirectly, by SPAC sponsors and IPO investors. This allows the latter to make money from SPACs even if SPACs create negative social value.

Legal scholars worry that existing laws cannot adequately regulate large private companies (“unicorns”). At the same time, unicorns seem to be a key part of flourishing markets. Are unicorns a problem that requires solving or a sign that entrepreneurial finance is working? This essay addresses that question by tracking outcomes for the 32 startups that qualified as unicorns when the moniker first emerged. It introduces a new typology of unicorn outcomes to guide policy makers and offers a preliminary hypothesis that private ordering by founders, employees, and investors is proving an effective alternative to ambitious regulatory reform.

Rules are rules and orders are orders, and never the twain shall meet. Generations of scholars and practitioners were taught back in law school that the Administrative Procedure Act (APA) divides the universe of agency action into two exclusive and exhaustive categories: “rulemaking,” which is used for promulgating “rules,” and “adjudication,” which is used for issuing “orders.” Each of those modes of agency action has its formal and informal versions, and some statutes mandate “hybrid” procedures with an intermediate level of formality. But the starting point for analyzing a given agency action is to decide whether that action falls into the “rule” box or the “order” box, which are separate and distinct. That is what then-Professor, now-Justice Elena Kagan taught me back when I took her Administrative Law class as a 2L, and it’s what I’ve taught my students for the last fifteen years. But it’s not quite right. “Rules” and “orders” are not, in fact, completely separate and non-overlapping categories. Sometimes an administrative action that is properly classified as an order contains within it—usually in the portion explaining the order’s legal basis—a statement that qualifies as a rule and ought to be treated as such. The fact that such a rule is embedded within an order does not make it any less of a rule. And that means that the process for formulating an embedded rule counts (or ought to count) as a “rulemaking” under the APA.

Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet not all employers are equally willing or capable of serving as such financial intermediaries. Larger employers commonly offer more and better benefits than smaller employers. In recent years, so-called Professional Employer Organizations (PEOs) have pitched themselves as a private-sector solution to the challenges traditionally faced by smaller employers. PEOs have pioneered and marketed a “co-employment” model pursuant to which a business and the PEO agree to share certain employer rights and responsibilities, with the PEO taking on all of the human resources matters and the client-employer otherwise retaining control over the business. While PEOs respond to long-standing challenges faced by smaller employers and have the potential to increase access to workplace benefits, this Article argues that they also introduce new and significant governance concerns that are not adequately addressed by the existing regulatory framework. Empirical evidence suggests that as currently structured, PEOs may not, in fact, provide “Fortune 500” benefits to employees at smaller companies and may instead lock participating employers into costly benefit bundles and expose them to the risk of unpaid employment taxes and health insurance claims. To protect participants in arrangements where PEOs provide key workplace benefits, this Article recommends strengthening and uniformly applying registration, disclosure and oversight requirements for all non-employer intermediaries, including PEOs. In the longer term, comprehensive retirement reform is needed to account for the transformation of workplace benefits in the United States.

Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate policy. The social cost of carbon, meant to capture the damage done by a ton of carbon emissions, helps to determine the stringency of regulations in many domains, including emissions limits on motor vehicles and on stationary sources. In determining the social cost of carbon, agencies must decide whether to use the global number (as chosen by Presidents Barack Obama and Joe Biden) or instead the domestic number (as chosen by President Donald Trump). Use of the global number should be seen as a form of climate change cosmopolitanism, whether the grounding is moral, strategic, or otherwise. Within the constraints of governing statutes, there are four central arguments in favor of using the global figure. (1) The epistemic argument: experts do not know a great deal about the purely domestic harms from climate change, which makes it impossible to generate a purely domestic number. (2) The interconnectedness argument: harms done to U.S. citizens by domestic emissions are not limited to those directly brought about by the incremental increase in temperatures within the territorial boundaries of the United States; they include an assortment of harms to U.S. citizens living abroad and harms to U.S. citizens and interests that come as a result of the cascading effects of harm done to foreigners (including governments, companies, and individuals), which are ultimately felt by U.S. citizens or within the United States. (3) The moral cosmopolitan argument: in deciding on the scope of its regulations, the United States has a moral obligation to take account of the harms it does to non-Americans. (4) The reciprocity argument: if all nations used a domestic figure, all nations would lose; a successful approach to the climate problem requires nations to treat greenhouse gas emissions as a global, and not merely domestic, externality. Neither the epistemic argument nor the incompleteness argument justifies the choice of the global number.

As the Biden Administration works on updating the social cost of carbon (SCC), some economists are urging a different approach, known as the “Marginal Abatement Cost” (MAC) method or the “target-consistent” approach. Rather than attempting to calculate all the damage caused worldwide by each ton of carbon dioxide released into the atmosphere, the MAC approach instead asks: what is the highest amount of money per ton that society will need to be willing to pay if we are going to successfully meet greenhouse gas reduction targets? This approach has the virtue of avoiding the most intractable complexities and uncertainties involved in estimating the SCC, including embedded ethical judgments about the degree to which the interests of future generations should be discounted in comparison to our own and the scope of the relevant “society” across which climate damages should be measured. Nonetheless, the MAC approach has come under fire from cost-benefit purists who argue, first, that it is inappropriate as a matter of good policymaking and, second, that it is prohibited by law. Both claims are at a minimum overstated and arguably outright wrong. As a matter of both legal mandate and good policy, the Biden Administration would do well to avoid the CBA orthodoxy that some commentators advocate. Instead, the Administration should as a matter of good policy—and can as a matter of law—make use of the rich variety of tools in the regulatory decision-making toolbox, including the MAC approach, in developing climate policy.