openYLS: Recent submissions
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Law, Literature, and The Legal ImaginationLaw and literature occupies an unusual place among the interdisciplines in the legal academy. Various interdisciplinary conjunctions have found a home on law faculties over the last half-century or so, such as law and economics, law and sociology, and law and psychology, more recently supplemented by law and neuroscience.1 Most law professors could summarize the aims of scholarship fairly accurately in these areas. For instance, if asked to propose a topic for a new article, even someone who rarely reads work in law and psychology could probably offer a plausible example—maybe not an example that scholars in that area would find compelling, but at least one that they would not reject as inapposite. Law and literature has had a place in the legal academy for about the same amount of time, as this symposium attests, and yet those who do not read current scholarship in this field tend to have a vague or even misinformed understanding of what the work entails. Having outlasted the many predictions of its demise, the field nevertheless suffers from a strange kind of identity crisis—not because of anxieties or doubts among those who write in this area, but because of confident but misguided accounts that others would offer when describing the field.
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Dissenting AuthorityThis essay explicates J.B. White’s rhetorical conception of authority as a potentially collaborative achievement and contrasts it with the conception of authority as surrender of judgment prevailing in legal philosophy. On White’s view, authority is not an instrument held and deployed, but is conferred, like respect. This conception of authority illuminates three puzzles concerning the relationship between dissent and legal authority. First, Legal Positivism’s purportedly descriptive account of law insists it must claim an authority to govern independent of justice and assent. Yet law’s language is replete with justice-based appeals for popular assent. White’s reading of the practice of legal authority better explains this evidence. Second, liberal moral philosophers often take value dissensus as evidence that legal authority is necessarily illegitimate. Yet the language of radical dissenters often makes an appeal for legal authority rather than anarchy. White’s conception of legal authority as a practice of public reason better accounts for radical aspirations to claim authority. Third, a conventional account of precedent implies dissents are pointless, because they can have no legal authority. Yet White’s conception of authority as collaborative engagement explains how dissenting voices contribute authority to law. Law earns our allegiance by remaining open to contestation, and by inviting rather than repressing our critical judgment.
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ForwardIt is my honor to introduce twelve essays, themselves honoring the 50th anniversary of James Boyd White’s momentous The Legal Imagination: Studies in the Nature of Legal Thought and Expression.1 The weightiness of the 1000-page, hardcopy, 45th Anniversary Edition (2018) is matched only by the wisdom and wittiness of its author.2 In his introduction to the September 2023 Symposium Fifty Years of the Legal Imagination: A Symposium in Honor of James Boyd White, White explains the moments, the questions, the tensions, and the conjunctions that in younger days led him to his teaching of law and humanities. As both his introduction and the essays that follow attest, his work is above all a contribution to the learning of law. I mean that in a double sense: the “learning of law” as how one comes to know law and also as what law knows. Over and over, White invites us to recognize the many ways in which knowing and doing law are matters of language, which one can always learn to do better.
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The Humanities and Law SchoolI encountered James Boyd White about a year after law school, not during. It was a late springtime trip down to the Seminary Co-op at the University of Chicago. There, a new arrival: White’s Heracles’ Bow. I was hooked. Since then, only my direct mentors have had greater influence over how I think about, and practice, law. Moreover, one of his later books, Living Speech, influenced greatly how I think about almost everything.
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The Origins of the Legal ImaginationI want to say at the outset that I feel honored beyond imagining at this celebration of the fiftieth anniversary of my book, and all the more because it is you who have set this up—so many beloved friends over the years and others who will surely become friends. I thank you deeply. As I wondered about what I might say this morning, I thought perhaps you would be interested in where this truly odd book, with its 986 pages of readings and questions, came from.
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The Flowering of Civil Law: Early Italian Statutes in the Yale Law LibraryCatalog of an exhibition highlighting the Lillian Goldman Law Library’s outstanding collection of early Italian city statutes, rivaled by few other U.S. libraries and surpassed by none. These municipal codes governed the dozens of Italian city-states that arose in the Middle Ages and persisted until the reunification of Italy in the late 19th century. In their mixing of Roman law, local law, and pragmatic innovations, the Italian municipal statutes became the prototype of European civil law.
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SPACE-TIME REVOLUTION: THE PROVINCIAL CONSTITUTIONALISM MOVEMENT AND THE ESTABLISHMENT OF LOCAL SYSTEMS IN MODERN CHINAOne of the crucial constitutional moments and historical turning points in modern China was the Provincial Constitutionalism Movement. This movement commenced in 1920 in Changsha, the capital of Hunan province in south-central China. Initiated by Mao Zedong and local intellectual and political elites spanning generations, it rapidly expanded to southern China and swept across the entire country in the early 1920s. This constitutional transformation triggered the first revolution of constitutional space-time in modern China: the previously monocentric state power structure evolved into a polycentric one, and the imperial-era local administrative framework was transformed into a republican provincial system. Consequently, for the first time in Chinese history, modern local systems were established within a constitutional framework, affirming the constitutional status of provinces, provincial systems, and provincial powers. In current studies, the Provincial Constitutionalism Movement has long been greatly underestimated due to the dominant Tocquevillian paradigm, which reduces any constitutional change to a binary framework of French-style centralization versus American-style decentralization. According to this framework, scholars interpret the Movement as Chinese federalism—a short-lived and failed attempt at decentralization within a predominantly centralized state. This binary paradigm is deeply rooted in a dualistic yet monocentric spatio-temporal view, which this book terms “constitutional monocentrism.” In contrast, this book proposes a “general theory of constitutional space-time,” aiming to explain constitutions and revolutions from a broader constitutional perspective of spatial configuration and temporal transition. From this perspective, the Provincial Constitutionalism Movement of the 1920s in China demonstrated a polycentric republican revolution based on leading provincial capitals. The Movement, in terms of constitutional time, was not merely a “new beginning” influenced by Western impacts. Rather, it emerged as an adapted product of the continuous accumulation and eventual convergence of various Chinese institutions from the imperial period to the republican era. Consequently, China did not ultimately establish a federal state. Unlike the revolutionary constitutional movements of the United States, India, and others characterized by mass mobilization, the Chinese constitutional path, exemplified by the Hunan Self-Government Movement—the first provincial constitutionalist movement beginning in 1920—was mainly distinguished by establishmentarian elite integration. This unique approach may be termed in this book as the path of Establishment Transformation. Since the constitutional reforms of the late Qing Dynasty, China’s constitutional trajectory has continuously repeated the path to Establishment Transformation, manifesting in various forms. Super capitals, such as Beijing and Changsha, functioned as strongholds of the insider establishment, under the decisive influence of the incumbent regime. The initial constitutional struggles centered on the dilemma of whether to dismantle or preserve existing local governments inherited from China’s feudal imperial era. Paradoxically, the ostensible “new beginning” heralded by provincial constitutionalism ultimately represented a reversion to the “old ending,” demonstrating the persistent influence of historical institutions on China’s constitutional development. The Provincial Constitutionalism Movement, in terms of constitutional space, was not a simple process of decentralization, but rather a (re-)centralization process centered around provincial capitals. This revealed the longstanding polycentric constitutional configuration of China, with potentially multiple and mutable political centers. This movement unveiled a constitutional feature of modern China that deviates from stereotypical perceptions of the centralized nature of the Chinese Constitution: Chinese provinces played a crucial role in national transformations, akin to American states, which markedly contrasts with the French model centered around Paris. Before the movement—as one might expect—during the period of the late Qing Dynasty and the early Republic, constitutions had always been drawn up in Beijing, the national capital. However, as the movement arose, the center of constitutional change shifted from Beijing to Changsha and other provincial capitals. New provincial constitutions established new regimes in a few super capitals—i.e., the provincial capitals that had served as both constitutional centers and ancient dynastic capitals where political power was concentrated time and again—and these constitutions were simultaneously deployed in the competition to seize power on a national scale. Scholarly analyses of provincial constitutionalist movements during the Republican period have consistently exhibited a significant oversight: an overemphasis on the “constitutional” aspect while underappreciating the “provincial” dimension, particularly the pivotal roles of provincial capitals and provincial systems. Within the constitutional space, the provincial capital functioned as the center of the province, while the provincial system represented the province’s evolution over constitutional time. The provincial system revolved around the provincial capital, and conversely, the provincial capital was predicated on the provincial system. Together, these dual elements constituted the fundamental components of the “province” within the Chinese constitutional space-time continuum. The interplay and evolution of provincial capitals and provincial systems reveal that beneath the constitutional crises and struggles was a fundamental transformation of a deep constitution, comprising the feudal configuration of constitutional space and the generational transition across constitutional time. This deep constitution, a legacy of the feudal imperial system from the late Qing Dynasty, had undergone only partial reform in modern China, with its core structure largely preserved and adapted. As a result, this deep constitution continued to shape constitutional transformations in modern China, giving rise to new constitutional crises with each attempt at constitutional change. The trajectory of the Provincial Constitutionalism Movement, marked by its ascent and decline, catalyzed a more intense resistance and critical examination of the vestiges of the feudal imperial system among Chinese intellectual and political elites, exemplified by Mao Zedong and his contemporaries. This heightened scrutiny propelled them towards embracing a revolutionary path aimed at dismantling the establishmentarian party and the entrenched deep constitution. In turn, this shift in approach led to the second constitutional space-time revolution in modern China.
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Pandemic State-Building: Chinese Administrative Expansion Since 2012In 2020, with the onset Of the COVID-19 pandemic, China embarked on one Of the largest expansions of administrative capacity in its modern history. Compared to its pre-COVID self, the current Chinese government can now track and manage individual activity with unprecedented precision and regularity. While some Of these developments were emergency measures that were limited to the pandemic, many of them have become institutionally entrenched through generalized lawmaking and policymaking, permanently transforming the Chinese government's relationship with its population. Most importantly, the Party-state delegated enormous administrative-law enforcement and information-collection powers to two levels of urban government-the "subdistrict," and below it, the "neighborhood community"-that used to be institutionally marginalized. This Article is the first systemic study of this paradigmatic transformation. Through a comprehensive analysis of central-level laws, regulations, and policies, paired with local case studies from major cities, it traces the institutional framework and political logic of Chinese administrative expansion. Its core argument is that the sudden onset of COVID-19 forced cohesive action onto a previously internally conflicted political landscape. Chinese leaders had contemplated a significant expansion of urban local governance as early as 2012, when Xi Jinping first rose to power, but as recently as 2018-19, they still seemed torn about its potential to aggravate principal-agent problems within the Party-state. The arrival of the pandemic rapidly and definitively resolved this internal debate in favor of expansionism, producing the extraordinary informational and law-enforcement apparatus that now exists in close proximity to every urban resident.
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Celebrating Michael OlivasThe article focuses on celebrating the life and work of Michael Olivas, a prominent figure in legal academia. It discusses Olivas's contributions to legal scholarship, particularly in the areas of education and engaged scholarship. It highlights Olivas's critique of higher education and miseducation, emphasizing issues such as inequality, access, and diversity in the legal profession and academia.
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MIDSTREAM CONTRACT INTERPRETATIONThis Article makes two original contributions to the contract interpretation and renegotiation literatures. First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract. Parties may predict differently how the applicable court will weigh facts, apply legal rules, or interpret contracts. When parties disagree regarding the court's interpretive practices, they will assess their expected litigation payoffs differently. This could cause parties to litigate transactions rather than complete them, even when the parties agree on the economic parameters. Litigators know that differing predictions about what a court will do can impede settlement. We add that party uncertainty over court types can prevent parties from making efficient deals and continuing those deals to completion. Neither scholars nor courts have analyzed how the consequences of uncertainty over court types affects the parties' behavior. Our second contribution is to suggest a novel interpretive procedure that responds to uncertainty about both party and court types. Parties should be able to obtain a "midstream contract interpretation": a judicial interpretation of their contract at the renegotiation stage rather than after a breach occurs. A midstream interpretation, in the form of a declaratory judgment or a new reformation remedy, would permit parties to learn about the applicable court and each other. As a result, parties would be more likely to continue an arrangement they would otherwise inefficiently terminate, or efficiently terminate a relationship without bearing unnecessary performance or litigation costs.
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SEEING "THE COURTS": MANAGERIAL JUDGES, EMPTY COURTROOMS, CHAOTIC COURTHOUSES, AND JUDICIAL LEGITIMACY FROM THE 1980S TO THE 2020SFrom some perspectives, litigation looks vibrant, with frontpage coverage of the U.S. Supreme Court's reconsideration of its precedents and high-profile civil and criminal lawsuits against government officials. Moreover, since the 1980s, the federal judiciary has had an ambitious building program producing dozens of courthouses designed to exemplify the "solemnity, stability, integrity, rigor, and fairness " of adjudication. Such edifices underscore courts ' place in narrations of the United States. Yet the challenges of legitimating government authority, of which judicial actions are a part, have become all the more acute since Managerial Judges was published forty years ago. The world of ordinary litigation is troubled and shrinking, and the disjuncture between judges ' stated goals and their practices has become vivid. Aside from a few aggregations of tens of thousands of cases in "mega" multidistrict litigations (MDLs), filings in the federal courts have flattened and declined to about 240,000 civil cases per year. At both trial and appellate levels, significant percentages of litigants proceed without lawyers; about one-quarter of civil filings and about half of the appeals come from individuals representing themselves. Most circuits have embraced norms of limiting oral arguments and of issuing eighty-five percent of their decisions as non-precedential rulings. Those practices, rendering their work less visible, parallel the lack of transparency of the many managerial decisions at the trial level, where hours on the bench are down to about 320 per year and fewer than one of 100 civil lawsuits ends with a trial All the while, federal courts remain relatively rich in resources and staff as compared to both state and tribal courts and to agencies. Even as filings likewise have fallen, state courts continue to have tens of millions more cases and larger segments of their dockets in which lawyerless litigants are the norm. Many judges are ill-equipped to respond to disputants with limited resources, often in family conflicts or as debtors and tenants who face resourced adversaries. Further, as the focus shifts to web-based resolution mechanisms, little attention is paid to its privatizing features. Providers of online dispute resolution (ODR) have not seen enabling public access as part of the packet of services to promote. Thus, courtroom-based adjudication is becoming increasingly rare. One possibility is that this form of statecraft is failing and the time has come to abandon its aspirations. Yet, as an heir to a political tradition grounded in the due process ideology of governments obligated to make decisions that are not arbitrary, I am not willing to give up the public service of adjudication and on courts as one of many venues to put into practice commitments of equal treatment. To legitimate decisions, judges need to preside over cases in which litigants are able to provide adequate information. This article analyzes the federal judiciary's function as an adjudicatory institution and as an "agency" with its own programmatic agendas. During the last few decades, the federal judiciary has successfully lobbied Congress to create and finance a host of projects, including authorizing judges to centralize cases through multidistrict litigation, to select and appoint adjunct magistrate and bankruptcy judges, and to oversee the design of dozens of new courthouses. Since the 1990s, the federal judiciary has also gathered statistics on and repeatedly raised concerns about the number of self-represented litigants. Yet the judiciary has not generated structural responses, such as a national database on the many district court "pro se " projects and new mechanisms to enlist lawyering and other resources, to enable judges to make principled decisions in those cases. Likewise, while the docket is heavily dependent on the cross-litigant subsidies generated through class actions and MDLs, judges have not crafted methods to mobilize the lawyering resources in those configurations to support litigants within or to shape a robust method of overseeing implementation of the resolutions reached. To date, the federal judiciary has not instituted a mechanism to buffer against allocating adjudicatory resources largely based on litigants' economic wherewithal. Moreover, the federal judiciary, entwined with state and tribal court adjudication, has not joined its counterparts in pressing Congress to provide new streams of funding for all kinds of courts and the people using them. Navigating the political economy of courts producing a crisis of legitimacy requires reorienting the "process due" by revising statutes, doctrine, practices, and rules to respond to an eclectic set of claimants seeking to be heard. "Management" of the people in court does not suffice.
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NONDELEGATION, ORIGINAL MEANING, AND EARLY FEDERAL TAXATION: A DIALOGUE WITH MY CRITICSProponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings. This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.
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BEYOND THE PERSONAL BENEFIT TEST: THE ECONOMICS OF TIPPING BY INSIDERSRecent insider trading cases reveal a stark conceptual divide between the federal courts and the U.S. Securities and Exchange Commission (SEC) regarding liability for securities fraud in cases in which an insider (a "tipper") gives material non-public information to a market professional or close friend or other potential trader (a "tippee"). Following the landmark Supreme Court case called Dirks v. SEC, the federal courts do not impose liability on tippers or tippees unless the tipper receives a consequential personal benefit or is a close friend or relative of the tippee. The SEC abjures this "personal benefit" requirement, and would define the concept of personal benefit so broadly as to remove it as an impediment to insider trading prosecutions. This Article explains the economic function of the personal benefit test as establishing the criterion upon which legitimate trading on the basis of material non-public information can be distinguished from venal or corrupt trading. The Article shows that the personal benefit test, while a valuable innovation to insider trading jurisprudence, is severely limited because it does not capture all of the various motivations that cause insiders to convey material non-public information to traders. This Article fills that gap by providing a complete taxonomy of tipping and trading, and explaining the legal consequences of all of the various forms of insider trading.
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SOCIAL NORMS AND INSIDER TRADINGInsider trading is a somewhat misleading term. To the extent that the phrase is supposed to connote improper and unethical trading, it is both overinclusive and underinclusive. The term insider trading is overinclusive because not all trading by corporate insiders is improper or unethical. After all, insiders often trade while not in possession of any valuable or material information about the company whose shares they are trading. The term insider trading is underinclusive because it frequently is the case that trading by outsiders, i.e., those who have no connection with the company whose shares are being traded, is improper and unethical. A clear example of such trading is trading by government officials and legislators on the basis of nonpublic information obtained in the course of their official duties.
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EXCUSE 2.0Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds signifcant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view from a macroeconomic lens. Macroeconomics offers a new justifcation for the law of excuse and new ways of understanding the doctrine’s mysteries, creating Excuse 2.0. We offer a simple macroeconomic model of excuse doctrine, highlighting the role the doctrine plays under conditions of economic crisis and potential recession. Our analysis illustrates a counterintuitive advantage of excuse doctrine, suggesting that the legal uncertainty surrounding the doctrine can induce loss-sharing between contractual parties, thus minimizing the costs of long-term economic instability. In the COVID crisis, for example, excuse doctrine facilitated an extraordinary wave of contractual renegotiation and loss sharing—without triggering excessive litigation. We discuss the interpretive and normative implications of our analysis and highlight its signifcance for contemporary policy debates in the wake of the COVID-19 pandemic.
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A New Tool for Enforcing Human Rights: Erga Omnes Partes StandingIn 2019, The Gambia brought suit against Myanmar in the International Court of Justice to hold it accountable for its alleged genocidal acts against the Rohingya, an ethnic Muslim minority group that has long been subjected to systemic abuse by the Myanmar government. As a State party to the Genocide Convention, The Gambia claimed that it had a common interest in preventing genocide by Myanmar. In a landmark decision issued in 2022, the Court accepted that The Gambia had standing and ordered Myanmar to prevent the commission of genocidal acts against the Rohingya. This Article argues that this decision offers the promise of a revolution in the enforcement of international law, especially international human rights law. It transforms what has long been the Achilles heel of international human rights law--the protection of legal rights shared by all--into an asset through the recognition of erga omnes partes standing, which allows a State party to a treaty that protects common legal rights to enforce those rights even if that State is not specially affected by the violation. As a result, whereas it was once too often the case that no State possessed the capacity to enforce the law, now every State that is party to the relevant treaty may have that capacity. This Article places these recent developments in context, tracing the evolution of the case law on erga omnes and erga omnes partes obligations over the course of more than a half century. It considers the extent to which the recent recognition of erga omnes partes standing as an enforcement mechanism might be expanded to other treaties. This Article considers, too, the potential drawbacks of this new mechanism for international law enforcement and the new questions the Court will inevitably face as this revolutionary development continues to unfold.
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War Reparations: The Case for CountermeasuresWho pays for the terrible destruction wrought by war? This problem is far from new, but it is currently receiving renewed attention as a result of the war in Ukraine. The options currently available to states that are the victims of unlawful wars in the postwar era are limited. For Ukraine, some have proposed addressing this shortfall by seizing frozen Russian sovereign assets, and both the United States and Canada have passed legislation permitting just that. European officials have considered a similar proposal, but they have thus far rejected them as too legally risky. Indeed, such plans run afoul of the longstanding international law doctrine of sovereign immunity. Put simply, they attempt to cure one international legal violation by engaging in another. In this Article, we offer another way forward for Ukraine and any other state that might find itself in this situation in the future: Ukraine may deploy what is known as the international law doctrine of countermeasures to freeze Russian sovereign assets in response to Russia's injurious and illegal conduct against it. We argue that frozen assets need not be returned to Russia at the close of the war as long as Russia has failed to pay reparations. That is because the failure to pay reparations is itself an unlawful act for which countermeasures (continued freezing of assets) may be kept in place even if the unlawful war has ceased. Moreover, other states may join Ukraine, putting in place collective countermeasures, sometimes called "third-party" countermeasures. However, we argue against using countermeasures doctrine to simply seize Russian assets; such seizures would not properly qualify as countermeasures and thus would violate international law. This approach to countermeasures, if adopted, could have implications beyond Ukraine, extending not only to future war reparations but also to international responses to cyber operations, human rights violations, or violations of environmental law obligations. Indeed, the challenge of securing reparations for Ukraine must be addressed not as a oneoff problem but as a systemic one. We should therefore seek a solution that will benefit not just Ukrainians but other similarly situated actors in the future. This is yet another reason that existing ad hoc legislative proposals to seize Russian assets are inadequate: They might provide money to Ukrainians now, but they will undermine the international legal system while doing little to help future victims. Keeping the larger picture in view is not only important as a matter of equity and justice. It is also in the best interests of Ukraine, which must maintain unprecedented levels of global support for its ongoing defensive actions and efforts to hold the architects of this illegal war accountable for the extraordinary harm they have done. This Article's proposal for institutionalizing collective countermeasures meets this challenge, offering a way to reinforce the reparations obligation in circumstances beyond the present conflict.
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The Education JusticeThe article centers on Justice Sandra Day O'Connor's profound impact on education and civic engagement, as recounted by Judge Michelle Friedland. It explores O'Connor's commitment to improving educational opportunities, particularly for marginalized communities, and her pioneering efforts in civic education through initiatives like iCivics. It underscored the importance of education in fostering democratic citizenship and dismantling gender stereotypes.
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IN PRAISE OF JUSTICE SANDRA DAY O’CONNORA personal narrative is presented which explores the author's experiences and reflections on Justice O'Connor's approach to jurisprudence.
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The Strange Career of AntisubordinationConstitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible--provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept's support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism. This Article challenges that conventional account by demonstrating that antisubordination's career has been far more protean, complex, and--above all--strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. Indeed, it is impossible to understand last Term's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination's multiplicity. That decision introduced "antisubordination" into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with antisubordination's complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action's constitutionality. It will no longer do, however, simply to ignore antisubordination's considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas's much-debated jurisprudence but also clarifies our nation's garbled constitutional discourse.