Faculty Scholarship Series: Recent submissions
Now showing items 1-20 of 5508
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Foreword: From Ownership to CreditAn introduction is presented in which the editor discusses the topics in the issue including the role of credit and liquidity in shaping American property law, leading to implications for property theory in general.
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FORESEEABILITY CONVENTIONSHow has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinalfields. But for a century and more. critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum offoreseeability's puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived andjlourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, andjuries have establishedfixes or backs-which in this Article we callforeseeability conventions-to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law's basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division-even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest.
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EQUAL PROTECTION IN DOBBS AND BEYOND: HOW STATES PROTECT LIFE INSIDE AND OUTSIDE OF THE ABORTION CONTEXTIn two paragraphs at the beginning of Dobbs v. Jackson Women's Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi's abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief's arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action--a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito's claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law--a spirit that finds many forms of expression in the opinion's due process analysis. Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women's Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi's ban on abortions after fifteen weeks violates the Fourteenth Amendment's Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion. Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish.
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Memory Games: Dobbs's Originalism as Anti-Democratic Living Constitutionalism--and Some Pathways for ResistanceThis Article examines originalism's role in overruling Roe v. Wade in Dobbs v. Jackson Women's Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism's authority, as do originalism's appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism's authority, this Article shows that the conservative legal movement has practiced originalism as a form of living constitutionalism that makes our constitutional order less democratic in several important ways. To demonstrate how this is so, this Article returns to originalism's roots in the Reagan years and examines originalism's origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time--and continuously ever since--the Republican Party's platform promised that "[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life." I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. This Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs "living constitutionalist") and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs's living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan Administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past--entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.
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Contract Remedies for New-Economy CollaborationsProductive activity that once look place within a single firm now occurs when two or more firms collaborate to form an "alliance." The agreements that govern alliances are not typical contracts containing prices and quantities. Rather, they are "framework agreements" that regulate process and specify the parties' tasks-e.g., conduct R&D: explore marketing opportunities: exchange proprietary knowledge: create a dispute-resolution structure: and develop a plan for a successful result. The COVID-19 vaccines provide an example: alliance partners reciprocally exploited their, flexibility and comparative advantages to create the vaccines. The COVID-19 collaborations, however, were unusual because there was both an assured demand for-and great reputational gains from-delivering the product, and public pressure to finish promptly deterred strategic behavior. In the usual case, it is difficult to induce potential parties to commit to a collaboration, to stay with it when doubts about success arise, and to exploit a successful result efficiently. Collaboration breakups at the startup and implementation stages are common. Yet, disappointed parties seldom sue. This Article makes two principal contributions. Our first contribution is to show that lawsuits do not occur for new collaboration breakups because current contract law provides no remedies for a party disappointed by a counterparty's defection. Our second contribution is to develop remedies that would encourage private parties to enter into and to stay with potentially productive collaborations. Thus, our goal is to extend contract law to a significant part of the economy whose deals today the law does not support.
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HYPER-PRESIDENTIAL ADMINISTRATION: EXECUTIVE POLICYMAKING IN LATIN AMERICALatin American presidents frequently exercise policymaking authority that would be the envy of U.S. presidents frustrated by a fractious Congress and hobbled by the lengthy rulemaking procedures of the Administrative Procedure Act ("APA"). This Article critiques the hyper-presidential administration of those Latin American democracies characterized by broad executive policymaking powers and limited procedural safeguards. In the United States, although some celebrate presidential dominance as a route to democratic accountability, others observe that presidents can undercut agency independence, effectiveness, and public transparency. Public participation through notice-and-comment procedures, enforceable in courts, provides the primary source of democratic legitimacy for regulations. We argue that without procedural checks on executive policymaking, a presidential administration in the United States can approach the hyper-presidential administrations of some Latin American countries, now and in the past. Presidents may use their regulatory powers to entrench and expand their policymaking discretion, thus undermining agencies' ability to engage in technical and independent decision-making and eroding effective legislative, judicial, and public scrutiny. Our review of public administration in Latin America underscores the importance of administrative procedures designed to provide legal safeguards against the abuse of executive policymaking power. Administrative law in the region focuses primarily on individual adjudications and the maintenance of public power, imposing few procedural constraints on the promulgation of regulations and other broad policies. Elections are a public check on the Executive, but they provide only retrospective and diffuse scrutiny. Attempts to use other legal mechanisms, such as separation of powers, constitutional rights, public information access, and direct democracy are positive developments. However, administrative law in much of the region has largely failed to constrain extensive and arbitrary executive policymaking. To ensure democratic accountability, countries in Latin America should consider procedural safeguards that guarantee reasoned and participatory processes in executive policymaking, drawing on the experience--both positive and negative--of the United States. Latin America's historical experience demonstrates the risks of hyper-presidential administration inherent to any presidential government, whether in Latin America or the United States. At the same time, recent developments suggest that the United States can learn how collective rights and direct democracy facilitate public participation in government decision-making.
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A Glimpse of Early Modern Governance in Claire Priest's Credit NationThe article discusses the book "Credit Nation" by Claire Priest , which focuses on colonial entrepreneurship by mentioning the role of slavery in colonial commercial innovation, the balance between risk-taking and security for colonial entrepreneurs.
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PROPERTY LAW AND INEQUALITY: LESSONS FROM RACIALLY RESTRICTIVE COVENANTSA long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included racial covenants to appeal to a predominately white market clientele, resulting in a curtailment of opportunities for African Americans to acquire wealth in real estate. Racial covenants have been unenforceable under constitutional law since 1948, but I will argue that they were also a distortion of standard property law and that they undermined the principles on which property law rests. Courts could have recognized this at the outset and later, but for some reasons that this article suggests, they did not, with long-lasting repercussions for racial wealth inequalities.
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MULTI-PARENT FAMILIES, REAL AND IMAGINEDThe article presents the discussion on parentage reforms at the state level including multi-parent statutes. Topics include accommodating LGBTQ+-parent families and other families created through assisted reproduction; multi-parent families existed for decades in families with children conceiving through sexual procreation by different-sex couples; and actual arrangements of the family leading a child for splitting time across multiple households.
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HOW PARENTHOOD FUNCTIONSApproximately two-thirds of states have functional parent doctrines, which enable courts to extend parental rights based on the conduct of forming a parental relationship with a child. Different jurisdictions use different names--including de facto parentage, in loco parentis, psychological parenthood, or presumed parentage--and the doctrines arise from different sources of authority--common law, equitable, and statutory. While much has been written about functional parent doctrines, relatively little is known about how they work in practice. This Article fills that gap by documenting how functional parent doctrines operate, examining when, how, and to whom courts apply them. We collected and coded every electronically available functional parent decision issued between 1980 and 2021--669 cases in all--from every jurisdiction that has a functional parent doctrine. Our study reveals that common assumptions about functional parent doctrines fail to reflect the contexts in which such claims arise, the individuals who assert such claims, and the roles that the parties played in the children's lives. Among cases in our data set, relatives, and grandparents in particular, constitute a large share of the functional parents. In the overwhelming majority of cases, the functional parent has been the child's primary caregiver. And courts routinely apply functional parent doctrines to protect children's relationships with the person who is parenting them. In sum, we find that courts commonly apply the doctrines in ways that make children's lives more stable and secure by protecting their relationships with their primary caregivers and preserving their home placements.
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The Ghost of John Hart ElyThe ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely's conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely's ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities--even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today. Second, the Article contends that Ely's almost complete failure to anticipate the inaction of the judiciary in policing the democratic process--except when judges assist their own ideological allies--is devastating for his theory, which depended precisely upon an empirical prediction. Ely's conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely's two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy's shortcomings to be remedied within democratic politics--which is, in turn, the most desirable future of liberal constitutionalism.
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Peter Shane and the Rule of LawThe article discusses law professor Peter Shane's preoccupation with understanding what the rule of law means and with threats to the maintenance of the rule of law in the legal system in the U.S. Topics covered include legal argument as another means for pursuing partisan and ideological goals, difficulties of conceptualizing the rule of law, and the role that law plays in shaping administrative action.
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CONSUMER LAW AS AN AXIS OF ECONOMIC INEQUALITYThis is an edited transcript of a conversation held to introduce the Symposium that this special issue now publishes. The editing aims to promote clarity without abandoning the informal, free-flowing, and speculative quality of the original conversation. The published re-creation also seeks to preserve the full set of observations made in the original conversation rather than to filter or shape them to accommodate all the authors' views. We aspire, throughout our remarks, to raise questions and identify possibilities for further research rather than to report confident conclusions.
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ESG Investing: Why Here? Why Now?This article seeks to shed light on the nature, purpose, and prospects of ESG investing. Along the way, it develops an explanation for why so-called "ESG" or Environmental, Social, and Governance principles suddenly have emerged to dominate the corporate governance and investing landscape. Clearly, the real and existential threat of climate change has galvanized the investing public into taking some sort of action. As such, I argue that the ESG movement reflects a significant libertarian turn in the history of American politics. This is because one naturally would think that government, rather than the private sector, would be the place to look for solutions to broad societal problems like social injustice and protecting the environment. The emergence of ESG investing and governance demonstrates a consensus that government lacks credibility and is not viewed by rational citizens as a likely source of solutions to these broad problems. In simple terms, government unresponsiveness and ineptitude have created a vacuum, and the ESG movement reflects a broad shift from primary reliance on government to primary reliance on the private sector as the source of solutions to broad social problems. Thus, ESG investing and governance can be explained, at least in part, as a response to the failure of government. People are turning to corporations for solutions to problems that are typically in the government's domain because government has failed. This explains the "E" and the "S" in ESG, but it does not explain the "G," the governance component. Besides lack of faith in government, the emergence of ESG is attributable to the fact that the ESG movement focuses intensely on allowing management to govern for the "long term." Focusing long term serves the private interests of important political groups such as organized labor and corporate management because it takes pressure off management to focus on profit maximization or on objective criteria such as share prices for evaluating managerial performance. In addition, ESG governance is a new form of an anti-takeover device and a convenient tool for enabling ineffective management to escape accountability. Thus, the recent success of the ESG movement is attributable to the confluence of the private interests of management with the public's loss of confidence in the ability of government to address, much less to solve, the important environmental and social problems of the day. This loss of confidence has played conveniently into the hands of corporate managers who wish to avoid accountability. While the ESG movement has found success in attracting investors, I argue that it will not be successful in ameliorating the fundamental problems of global warming and income inequality that it purports to address. In fact, much, if not most of ESG investing is "cheap talk" in light of three fundamental realities: (a) corporate managers are overwhelmingly compensated by bonuses, stock, and stock options, all of which are forms of compensation that reward strong shareholder performance rather than the achievement of ESG objectives; (b) activist investors, particularly activist hedge funds and other elements of the market for corporate control, pose an existential threat to managers who ignore the shareholder wealth maximization paradigm; and (c) corporations are run by or under the direction of their boards of directors, who are elected exclusively by shareholders.
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TOWARD A "TENDER OFFER" MARKET FOR LABOR REPRESENTATIONAmerican workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But this strategy does not seem to be working for enough workers. Despite some recent renewed activity, private-sector unionization rates remain below ten percent and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article proposes a radical fix to the problem of declining unions. Drawing inspiration from corporate governance and its success in delivering financial returns to shareholders, the Article proposes allowing pro-worker investors to offer workers cash upfront for the right to represent them. If an investor succeeds in persuading a majority of workers in a workplace, the investor would be certified as the exclusive bargaining representative for the workers, and would be entitled to a percentage of any wage gains it obtained for the workers through collective bargaining. The resulting market for union representation would deliver cash to workers upfront, allow investors to demonstrate their capacity for delivering concrete results to workers, and attract resources to the cause of improving workers' conditions of employment. This new methodological approach also provides a lens for a constructive reevaluation of the objectives and tactics of American labor law.
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Democratizing Behavioral EconomicsThe article explores an approach to measuring well-being in behavioral law and economics (BLE), called the democratic BLE. Topics discussed include the role of BLE in revolutionizing policymaking, the differences between economists and ordinary people, policy recommendations being made by traditional law and economics, the tendency for thinkers influenced by BLE to insert personal and class biases into their arguments, and the agenda for reform proposed by democratic BLE.
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The Public History of Trade SecretsRising inequality and increasing concentration of corporate power have brought renewed attention to questions of political economy, and to how law helps to construct private power and encase it from democratic rearrangement. This Article brings a political economy perspective to the law of commercial secrets, to show that changes in the scope and justification for trade secret law, operating in a context of rising importance of data and information, have set this law on a collision course with our democracy. An area of law that was once understood as focused on fair competition and commercial morality has been retheorized as a kind of "intellectual property," following prevailing neoliberal arguments about the economics of information. Earlier limits on the scope of the law have been dissolved, so that companies today can claim that almost any confidential corporate information is a trade secret. The law has also been constitutionalized, so that a legislature disclosing corporate information -- from the ingredients in cigarettes to the price of a drug -- now face powerful challenges from corporations on the basis of the Takings Clause. Some of the most basic functions of the modern regulatory state, including many mandated disclosures about commercial products to the public, would not have been possible if this view had reigned in earlier decades. Unsurprisingly, it did not. Several Supreme Court cases that have largely been forgotten show that courts even at the height of laissez faire were clear about the categorical priority of the public, and rejected trade secret claims when they conflicted with the public's right to know. These cases, and earlier logics of trade secrecy that see it as an expression of values of fair competition and commercial morality, together form what I call the "public history of trade secrets." Recalling this history can help us to defend a more democratic relation between the political and the economic in our age of informational capitalism. These cases also point to a clear legal principle that would, if recovered, reshape what legislatures and regulators are able to reveal to the public: The disclosure of corporate secrets can be made a condition of participation in markets whenever the information helps illuminate the nature of a product or service. Recognizing this would enable vastly more public insight into companies and their products -- for example, enabling states to mandate disclosure of the algorithms that shape our social media feeds, and the secret data companies hold about the risks and benefits of consumer products.
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HAS THE ALIEN TORT STATUTE MADE A DIFFERENCE?: A HISTORICAL, EMPIRICAL, AND NORMATIVE ASSESSMENTThe Alien Tort Statute (ATS), which allows aliens to file civil suit in US. courts for etiolation of the law of nations, has been considered by many to be one of the most important legal tools for human rights litigation in the United States and perhaps even the world. The effectiveness of this tool, however, has been gradually eroded in a series of Supreme Court decisions. The statute's latest trip to the Supreme Court came in October Term 2020 in a pair of cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, brought by former enslaved children trafficked from Mali to Cate d'Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The mivority never reached the issue, holding instead that the plaintiffs sought inappropriately to apply the ATS extraterritorially- a decision that could haue-far-reaching consequences. This Ls an essential moment, then, to step back and assess the ATS. Before deciding how to moveforward, it is necessary to assess where we haue been, what the ATS has achieved, where it has fallen short, and to consider the range of options for human rights victims seekingjustice. To do that, this Article undertakes the most comprehensive empirical study of the ATS to date. Using a database of every single case brought under the ATS in US. federal court that has resulted in a published opinion, this Article provides a detailed picture of ATS litigation from 1789 to the present. This quantitative data is augmented with detailed interviews with participants on both sides Qf the modem cases. The Article arrives at three main conclusions that lead to three sets of recommendations. First, the greatest barrier to ATS suits is the limitation on extratenitorial etlect of the statute. In light of this. Anding, we recommend alternative strategies to provide accountability for human rights violations committed outside the United States. Second, plaintiffs generally do not receive significant material benefits from ATS litigation, but they still benefitfrom the opportunity to be heard and to bring attention to the hanns they haue suffered. Given this finding, we suggest greater attention to options for non-adversarial dispute resolution. Third, the ATS and other existing tools have proven inadequate for reaching corpomte contributions to human rights violations. Hence serious consideration should be given to legislation, including due diligence obligations, aimed directly at this problem.
