Now showing items 1-20 of 11853

    • Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office

      Katz, Elizabeth (2022)
      On January 20, 2021, Kamala Harris was sworn in by Justice Sonia Sotomayor as the nation’s first woman Vice President. This occasion, marked by women of color holding two of the most crucial roles in the federal government, would have been unthinkable to many for most of United States history. While the political efforts necessary to reach this moment have been studied in great depth, the legal challenges to women’s officeholding have been overlooked and even denied. Relying on extensive historical research, this Article is the first to examine how women advocated for more than a century for the legal right to hold public office through state-level litigation, constitutional amendments, legislative lobbying, and public commentary. From the 1840s through the 1940s, women in many states were excluded from holding even minor public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to assume posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the fire of the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging officeholding restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. In some states disenfranchised women could assume only a narrow range of offices related to education, children, and charity, while in other locations they could hold a wide array of appointed posts and even elected positions for which they could not vote. After women were enfranchised through either state constitutional provisions or the Nineteenth Amendment, their officeholding eligibility remained contested in jurisdictions that did not expressly authorize it. Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This Article’s account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions for more than a half century prior to the federal suffrage amendment. Second, this Article challenges prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding and suffrage as inevitably paired. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights.
    • Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach

      Powell, Robyn (2022)
      The social uprisings following the police killings of Breonna Taylor, George Floyd, and many other people of color elevated the concept of abolition to the forefront of people’s consciousness. Concurrently, there is a burgeoning body of legal scholarship calling for the abolition of the carceral regime. Some scholars also recognize that abolition efforts must include the child welfare system, more accurately termed the family policing system, noting the interdependent relationship between the family policing system and other parts of the carceral regime. Yet, despite the nascent legal scholarship calling for family policing system abolition, parents with disabilities and their children have been mostly disregarded. This Article responds to that scholarly void. In this Article, I situate the family policing system within the contemporary struggle for the abolition of the carceral regime. My overarching argument is that the family policing system is an unjust social institution for disabled parents and their children. As such, we must work towards abolishing it and replacing it with non-punitive supports and resources for families. First, the Article describes the family policing system and its legal obligations to disabled parents and their children. Drawing on legal scholarship and social science research, it then elucidates the scope of the problem, detailing the injustices and harms that disabled parents and their children experience because of the family policing system. Next, the Article argues that reforms are not sufficient because the family policing system inflicts injustices and harms on disabled parents and their children by design. Thereafter, it limns the tenets of both abolition and disability justice and the ways in which these interconnecting movements, theories, and praxes could advance justice for parents with disabilities through the abolition of the family policing system. Finally, it proposes a novel anti-ableist legal and policy agenda for abolishing the family policing system that is responsive to disabled parents and their children.
    • Sexual Dignity and Rape Law

      High, Anna
      Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity.” Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive.
    • Disclosure’s Limits

      Rodrigues, Usha; Stegemoller, Michael (2022)
      The U.S. Securities and Exchange Committee’s (SEC) proposed reforms of how it regulates special purpose acquisition companies (SPACs) lean heavily on the most familiar tool in its arsenal: disclosure. The proposed rules ask for more disclosure, and more standardized disclosure, on a variety of fronts. While as researchers we generally support more disclosure, unfortunately, we are deeply skeptical of the benefits disclosure alone can provide in this particular case to retail investors—the audience to which these reforms are directed. SPACs as currently structured feature a species of empty voting, where a shareholder’s voting interest is decoupled from her economic interest. Because of this fundamental disconnect, which is anathema to corporate law, our research indicates that disclosure-based reforms will be of limited utility in protecting investors.
    • Economic Substance in SPAC Regulation

      Halbhuber, Harald (2022)
      This Essay lays out an economic substance approach to regulating special purpose acquisition companies (SPACs) as sales of stock for cash. The approach presented here charts an alternative to the SEC’s recent rule proposal that better reflects the economic reality of SPAC transactions and is more firmly grounded in the structure of our existing securities laws. While the SEC’s approach does address certain gaps in the current rules, its primary drawback is that it still treats SPAC mergers as a special type of business combination that requires its own regulatory regime. We already have a regime for sales of stock to the public for cash. The SEC should adopt rules that simply apply this regime to the stock sale for cash that, in economic substance, occurs in SPAC mergers. Merging with a SPAC has become a popular alternative to an initial public offering (IPO) as a path for going public. Data has consistently shown that public investors often fare poorly in SPAC mergers, compared to the “sponsors” controlling SPACs, who frequently realize outsized gains. One recent study found that SPAC merger investments made by the public underperformed the market by close to 60% at the median after twelve months while SPAC sponsors earned median market-adjusted returns of almost 200% over the same period.
    • Net Cash Per Share: The Key to Disclosing SPAC Dilution

      Klausner, Michael; Ohlrogge, Michael; Halbhuber, Harald (2022)
      The Securities and Exchange Commission (SEC) has recently proposed regulations that would address a wide range of issues governing special purpose acquisition companies (SPACs).1 Central among these issues is the disclosure of a SPAC’s dilution and dissipation of cash as of the time of its merger, a topic two of us have addressed in an earlier article.2 The SEC’s concern (and ours) is that when a SPAC exchanges its equity for that of a target company, the value of the SPAC's equity is not what it appears to be, and not what it is stated to be in its merger agreement. First, the SPAC’s equity is spread among claimants that paid no cash into the SPAC. Second, much of the cash that was paid into the SPAC at the time of its IPO will have been paid out to various advisors by the time of the merger. As the SEC proposal recognizes, SPAC proxy statements fail to disclose how little net cash each SPAC share represents, and hence how much net cash will be exchanged for shares in the merger target.
    • How SPACs Made Old Things Old Again

      Morley, John (2022)
      When the SPAC boom began in the summer of 2020, a common way to explain the phenomenon was to say that SPACs were something new. SPACs raised $83 billion in 20201—nearly double the total raised in the previous ten years—and another $97 billion in just the first three months of 2021.2 They spread so rapidly that the public had little way of making sense of them other than to think that they represented a novel innovation, a kind of contagion for which American finance had no previous immunity. The SPAC boom started at almost the exact moment the American public began locking down against COVID-19—starting a process of viral replication in the financial markets to mirror the one happening in cities. But like COVID, SPACs were not altogether new—they evolved from creatures that came before. And like a real virus, SPACs are now living through a cycle of spread, response, and equilibrium that has also played out for its evolutionary ancestors. The essays in this online symposium take stock of some aspects of this cycle and offer suggestions for how to deal with it. As the legal scholar and former SEC official Henry Hu has argued, the cycles of novelty and innovation in finance are actually quite old.3 What pass as “innovations” are often just modifications that merely liberate existing practices from regulation by pulling them out of their regulatory categories. These innovations grow in popularity and then eventually produce the same problems the old regulations were designed to address, until the new innovations invite new regulations and new skepticism. By repeating many of the failures and successes of other innovations that came before, SPACs are taking this old cycle and making it old again.
    • 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.