Now showing items 1-20 of 18133

    • 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.
    • REPRESENTING JUSTICE Invention, Controversy, and Rights in City-States and Democratic Courtrooms

      Resnik, Judith; Curtis, Dennis (Yale Law Library Series in Legal History and Reference, 2011)
      The relationship between the courts and democracy is at the center of this book.
    • Building Coalitions out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law

      Schleicher, David (J. Legal Analysis, 2020)
      Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under aTDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed to sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the past fifty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development. Instead, they serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure. But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not InMyBack Yard opposition to new housing by building a competing pro-growth coalition. More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement antidevelopment coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies.
    • 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.
    • Thinking about the Commons.

      Rose, Carol (International Journal of the Commons, 2020)
      This article explores current developments in theoretical thinking about the commons. It keys off contemporary reconsiderations of Garret Hardin’s “Tragedy of the Commons” and Elinor Ostrom’s response to Hardin in Governing the Commons and later work. Hardin’s idea of a “tragedy” has received much criticism, especially from Ostrom herself; but Ostrom’s own work has also raised some questions in more recent commons literature. The key issue that emerges from this reconsideration revolves around the understanding of commons on the one hand as limited common regimes, central to Ostrom’s work, or on the other hand as open access, as espoused by more recent advocates of widespread access to information and communications networks.
    • Mill, acerca de la libertad de expresión.

      Fiss, Owen (Revista del Centro de Estudios Constitucionales (the Law Journal of the Mexican Supreme Court), 2020)
      En este ensayo el profesor Owen Fiss hace una revision critica de la obra de John Stuart Mill: Sobre la libertad, que presenta una defensa robusta de la libertad individual con base en el reconocimiento de la pluralidad de la condicion humana. De acuerdo con el profesor Fiss, Mill busc  expandir la capacidad de cada individuo de crear una vida distintiva para s  mismo. A lo largo del texto, el profesor Fiss presenta los componentes centrales de la teor a desarrollada por Mill y los discute en el contexto de diferentes casos de la vida social y pol tica estadounidense. Esta discusion hace patente que Mill entendi la libertad de expresion como parte de un proceso de autoexaminacion que permite a las personas cuestionar las convenciones sociales y postulados  ticos dominantes, y expresar libremente su individualidad. In this essay Professor Owen Fiss makes a critical review of John Stuart Mill’s On Liberty, which presents a robust defense of individual liberty based on the recognition of the plurality of the human condition. According to Professor Fiss, Mill sought to expand each individual's ability to create a distinctive life for himself. Throughout the text, Professor Fiss presents the central components of the theory developed by Mill and discusses them in the context of different cases of American social and political life. This discussion makes it clear that Mill understood freedom of expression as part of a process of self-examination that allows people to question dominant social conventions and ethical postulates, and freely express their individuality.
    • Decisional Humility and the Marginally Represented Patient.

      Fins, Joseph (American Journal of Bioethics, 2020)
      There was a cartoon circulating during the national debate about Terri Schiavo (Davies for the Journal News 2003). A couple is seated in a lawyer’s office with their attorney seated behind a desk. On the wall next to a diploma is a sign advertising living wills. The caption from one of the clients is “…& in the event that either of us is being kept alive by artificial means, we don’t want Jeb Bush to get involved.” The couple clearly do not want the state or bureaucrats stepping in and imposing their judgment in this private realm when they have lost decisional capacity. And yet that seems to be the default position offered by Dr. Berger (2020) in his argument about what he terms representedness. As we see the argument, he wants to deny non-intimate surrogates, family members of standing the opportunity to engage in surrogate decision making and seemingly substitute a cadre of well-meaning, well-intended bureaucrats. Citing scholarly papers, many of which date to the 1980s and 90’s during the heyday of bioethics scholarship on surrogate decision making and advance directive literature, Berger places his faith in the ethics committee, chaplains, and social workers over family members who have become distanced from the patient. Clearly, there is a role for clinical ethicists to step into the fray when the patient is truly isolated and incapacitated, that is when he/she has no relatives or friends to represent them. But the same cannot be said when there are available surrogates. Does Berger really think we—the professional class—is better positioned for this role than family members, even when they have lost contact from the patient? Berger offers a vignette of a nephew who hasn’t seen his uncle for six years. In his formulation, he opts for salvation from a bioethical bureaucracy. We find this troubling. On the basis of a very thin narrative reed—on a hypothetical which virtually has no content whatsoever—the nephew is excluded. How do we know that this is justified, that he should be excised from the decision-making process? The story, as told is incomplete, more a parable than a case report (Fins 1998). Maybe the nephew was close to the patient as a child. Maybe the patient was a favorite uncle long ago. Or he might have been especially close to the nephew’s parent.
    • Psychological and Political Contributors to Criminal Culpability: Reply to Brink, Howard and Morse

      Yaffe, Gideon (Criminal Law & Philosophy, 2020)
      This is a reply to David Brink, Jeff Howard and Stephen Morse’s commentaries on my book, The Age of Culpability.
    • Punishing Non-Citizens.

      Yaffe, Gideon (Criminal Law & Philosophy, 2020)
      This paper considers the question of why the non-citizenship of offenders poses an obstacle to their criminal punishment. Several proposals are rejected, including Antony Duff’s proposal. It is proposed, instead, that governments are not authorized to punish any offender who cannot be attributed with the norm he violates. The government cannot attribute the norm that a non-citizen violates to him, if the noncitizen can raise in his favor the fact that he has no say over the law. Under certain circumstances, such as when they are visiting, non-citizens cannot raise this point, and so can be attributed with the norms they violate.
    • The Norm Shift Theory of Punishment.

      Yaffe, Gideon (Ethics, 2022)
      The philosophy of punishment’s focus on the question of justification has left the question of definition neglected. This article explains why there is a need for necessary and sufficient conditions for punishment and offers a new account. Under the theory proposed, to inflict a punishment is to make fewer things permissible for another to do. Since not every such restriction is punishment, an account is offered of the additional conditions needing to be met. One implication of the resulting theory is that some prominent cases in which the question of definition needed to be answered were wrongly decided.