Yearly Archives: 2020
Mar 9, 2020 Robin J. EffronCourts Law
Diego A. Zambrano,
Discovery as Regulation, 118
Mich. L. Rev. ___ (forthcoming 2020), available at
SSRN.
Discovery is an instrument of litigation. It is thus unsurprising that most of the scholarship about discovery is itself instrumental–how to make it better or how to explain why it is not so bad. As Diego Zambrano argues in his forthcoming article, however, focusing on such questions misses the larger opportunity to interrogate the foundational purposes of discovery and to use these principles to shape the rules and practices of discovery. Zambrano’s article is a pathbreaking investigation of discovery as a process and an end in itself, rather than as a means to the “fairness-accuracy-settlement” model in which the “right” discovery rules match a commentator’s particular view about the values and purposes of litigation.
Zambrano uses private enforcement actions as his vehicle for taking a fresh look at the theories and principles behind discovery. Private enforcement lawsuits are those in which “Congress deliberately employs private litigants as the main method of statutory enforcement.” This allows him to work with the decades of research and arguments about the private lawsuits as key means of enforcing public law regimes. Once we accept that lawsuits are a form of regulation, it seems quaint to limit discussions of discovery to the relative burdens and merits that discovery serves within a lawsuit. Rather, discovery is an independent regulatory tool, albeit a tool housed within private civil litigation rather than in a public administrative or regulatory body. Zambrano’s insight ties these arguments to specific regulatory mechanisms that can be replicated in or adapted to discovery—namely, the subpoena power of many administrative agencies. He argues that “[w]hether discovery costs are too high should depend less on a case’s amount in controversy and more on whether the case generates proportional regulatory benefits and fewer costs than a comparable agency investigation.” Continue reading "Discovery and the Limits of Transsubstantivity"
Mar 6, 2020 Elena LarrauriCriminal Law
As a reminder, from Wikipedia: “The Sandy Hook Elementary School shooting occurred on December 14, 2012, in Newtown, Connecticut, United States, when 20-year-old Adam Lanza shot and killed 26 people, including 20 children between six and seven years old, and six adult staff members. Lanza committed suicide by shooting himself in the head. The incident remains the deadliest mass shooting at either a primary or secondary school in U.S. history. The shooting prompted renewed debate about gun control in the United States, including proposals to make the background-check system universal and for new federal and state gun legislation banning the sale and manufacture of certain types of semi-automatic firearms and magazines with capacity for more than ten rounds of ammunition.”
Although Congress passed no new federal laws, several of the strongest gun-control states did pass new ones. This is what prompted Professor James Jacobs and Zoe Fuhr to ask what could be achieved by the passage of New York’s 2013 SAFE (Secure Ammunition and Firearms Enforcement) Act, which, according to New York Governor Andrew Cuomo, is “the toughest gun control law in the nation.” The book traces—in a very lively way—how the SAFE Act was drafted, passed, and signed in thirty days without any compromises. It then analyzes what each of the dozen of the Act’s initiatives achieved. These initiatives include universal background checks, tighter bans on assault weapons and ammunition feeders (magazines), mandatory reporting requirements for mental health professionals who encounter patients who present substantial risks of violence, gun license forfeiture for persons subject to domestic violence restraining orders, license renewal every five years, and numerous criminal offense and sentence enhancements for regulatory violations and gun crimes. Continue reading "Why Does Gun Control Work in Europe?"
Mar 5, 2020 Omari SimmonsCorporate Law
Sarath Sanga,
On the Origins of the Market for Corporate Law, available at
SSRN.Professor Sarath Sanga’s paper titled On the Origins of the Market of the Corporate Law is a thought provoking challenge to popular beliefs concerning the origins of the market for corporate law and state charter competition, that is: (1) Supreme Court jurisprudence helped create a national market for corporate charters; and (2) Delaware became a market leader only because New Jersey (the initial leader) repealed its liberal corporate laws in 1913.
Instead, the paper contends that these two popular claims are wrong. It offers an alternative explanation: organic industrial expansion and interstate commerce led to the emergence of the market for corporate law and that New Jersey declined as a market leader due, in part, to other states copying its laws. Continue reading "History Lessons: Explaining the Origins of Corporate Charter Competition"
Mar 4, 2020 David HoffmanContracts
Gregory Klass, Boilerplate and Party Intent, 82 Law & Contemp. Probs. no. 4, 2019, at 105.
In Boilerplate and Party Intent, just out in Law and Contemporary Problems, Greg Klass unearths the following lovely piece of boilerplate from an insurance contract:
“Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage, they are, of the Seas, Men-of-War, Fire, Enemies, Pirates, Roverts, Thieves, Jettisons, Letters of Mart and Counter-mart, Suprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes, and People…”
Roverts! Counter-marts! Oh my. As Klass observes, this sort of clause is an example of non-negotiable boilerplate, which propagates in part because no one would dream of altering such hoary text. But it is also an exemplar of a type of contractual clause that is interpreted without regard to the parties’ intent, even if what particular signatories wanted “Suprisals” to mean could be ascertained. Continue reading "Pirates, Roverts, Thieves and Boilerplate"
Mar 3, 2020 Benjamin Plener CoverConstitutional Law
Carolyn Shapiro,
Democracy, Federalism, and the Guarantee Clause, 62
Ariz. L. Rev. (forthcoming, 2020), available at
SSRN.
How much power does Congress have to regulate state democracy? More than it may realize, suggests Professor Carolyn Shapiro, in her article, Democracy, Federalism, and the Guarantee Clause. Shapiro locates this untapped power in the Guarantee Clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” A significant body of scholarship has considered whether this clause empowers the federal judiciary to review undemocratic state practices (P. 2), a question the Supreme Court has repeatedly answered in the negative. But Shapiro flips the inquiry, focusing not on what the courts cannot do, but on what Congress can do. She concludes that Congress can do a great deal, arguing that the Guarantee Clause gives Congress the authority—and the duty—to intervene when necessary to ensure the democratic integrity of states.
Deploying a series of textual, functional, and historical arguments, Shapiro reframes the Guarantee Clause as a structural principle with dynamic substantive content. Modern democracy scholars might put it this way: antidemocratic practices in one state may produce negative “spillover” effects in another, causing an “antidemocratic spiral [that] is contagious.” (P. 5.) The Framers did not think in these precise terms, but they recognized the need to protect every state by ensuring that each state had a similar form of republican government. Thus, Article IV Section 4 protects “each” state from “Invasion” and “domestic violence,” but guarantees to “every” state a “Republican Form of Government.” (Pp. 11-12.) Continue reading "Congressional Power to Guarantee State Democracy"
Mar 2, 2020 Sam F. HalabiInternational & Comparative Law
Imagine a famous foreign jurist—say Richard Goldstone or Claire L’Heureux-Dubé—appointed to the U.S. Supreme Court, instead of (U.S. citizen) Samuel Alito, when popular criticism of citation of foreign law was at a fever pitch in the U.S. The outcry would have been swift and incendiary. Indeed, Ruth Bader Ginsburg and Sandra Day O’Connor received death threats for engaging with foreign law as they did. Yet for at least 21 jurisdictions (nearly all of them member states of the United Nations), foreign judges sit alongside citizen judges, helping to ensure the vibrancy of (sometimes recently established) democratic institutions, building confidence in the rule of law, and playing specific roles in ensuring judicial impartiality.
In Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, Rosalind Dixon and Vicki Jackson analyze the historical and functional reasons that these arrangements have arisen. With a focus on the democratic legitimacy of the practice, Dixon and Jackson concentrate on three jurisdictions—Hong Kong, Fiji, and Bosnia-Herzegovina—as they analyze the advantages, disadvantages, and factors that lead to relative success or failure of hybrid court efforts. Dixon and Jackson are attentive to the relevance of their subject, not only for the potential expansion of hybridization, but also for the legitimacy of comparative constitutional engagement generally (the article builds on their previous work on interpretive outsiders), even when all judges are citizens of a country’s constitutional court. Continue reading "Foreign Judges on Constitutional Courts?"
Feb 28, 2020 Sergio ParejaTrusts & Estates
All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the transferor, or in the case of a decedent, to the “dead hand,” (2) respect for formality, (3) the importance of the traditional, legally-recognized family, and (4) the “wealth” narrative that focuses on the transmission of conventional forms of wealth.
In her thought-provoking article, Professor Naomi Cahn challenges these underlying principles. She, correctly, I believe, identifies the wealth narrative as the “strand…that structures the rest of the field.” For example, she notes that dead-hand control is only important when a decedent dies with wealth to be transferred, and she analyzes how wealth helps transfer privilege and maintain the status quo. Professor Cahn also looks at who has wealth and recognizes that the sociodemographic diversity of who has wealth impacts this area of law. She seeks to get her readers to challenge the foundational principles of the field by considering new perspectives from race, gender, class, and sexual orientation. Continue reading "Deconstructing Foundational Principles of Trusts and Estates Law"
Feb 27, 2020 Tal ZarskyTechnology Law
When considering online contracts, three assumptions often come to mind. First, terms of service and other online agreements are purposefully written to be impossible to read. Second, lawyers at large law firms create these long documents by copying them verbatim from one client to another with minimal tweaking. But third, none of this really matters, as no one reads these contracts anyway.
David Hoffman’s recent paper Relational Contracts of Adhesion closely examines each of these assumptions. In doing so, Professor Hoffman provides at least two major contributions to the growing literature and research on online standard form contracts. First, he proves that these common assumptions are, in some cases, wrong. Second, he explains why these surprising outcomes are unfolding. Continue reading "The Cute Contracts Conundrum"
Feb 26, 2020 Eric BiberLexEnvironmental Law
Robert C Ellickson,
Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at
SSRN.
An article about the cost of housing may seem a surprising choice as one of the year’s best environmental law articles. But there are good reasons for it: Housing costs in major coastal metro areas in the United States are soaring. Strong evidence suggests that the stringent of land-use regulations is a major contributor to those price increases Some commentators also consider state-level environmental review laws, such as the California Environmental Quality Act, among those stringent land-use regulations – thus implicating environmental law as a cause of the housing crisis. At the same time, transportation is one of the primary contributors to greenhouse gas emissions in the United States, and is the largest single sector now in California. Addressing emissions from transportation requires a reduction in vehicle miles travelled by Americans, which in turn requires densification of the built landscape to facilitate walking, biking and public transit use. But densification may be difficult or impossible in the face of soaring metro housing costs and stringent land-use regulations that obstruct redevelopment.
Ellickson’s piece provides a timely contribution to both of these debates, because it provides something that has been sorely lacking in the debates over how land-use law shapes housing policy and the built form: Data on how the land-use regulatory system actually operates in practice. Up to now, most of the literature (whether economic, planning, or law) that has tackled how land-use regulation operates on the ground has been either speculative, or it has relied on surveys of developers and planners. This is in part because the local nature of land-use regulation in the United States, combined with its sometimes extreme complexity in local jurisdictions, makes data collection expensive and difficult. Surveys attempt to elide this issue by asking for perceptions or knowledge of land-use regulation by actors (planners and developers) who should know much about the topic, but they may not always accurately reflect the realities of land-use regulation on the ground. But if we want to solve the problems of housing cost and greenhouse gas emissions from transportation, we need to have good data on the true nature of land-use regulation is in the United States. Continue reading "The High Cost of Exclusionary Zoning"
Feb 25, 2020 Richard MurphyAdministrative Law
- Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019), available at MLaw Repository;
- Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. (forthcoming), available at SSRN.
Maybe you have been wondering, for one reason or another, just what the “executive power” entails. If so, you are in luck, for Professor Julian Davis Mortenson has an answer for you in two magisterial, deeply researched articles that also happen to be compelling reads: Article II Vests Executive Power, Not the Royal Prerogative, and its sequel, The Executive Power Clause. It turns out that “The executive power meant the power to execute. Period.” (Executive Power, P. 5.)
It will come as no news to readers of this website that, about a quarter of a millennium ago, Article II of the Constitution vested the “executive power” of the United States in the president. And ever since that time, Americans have been arguing about just what this “executive power” entails. In truth, it seems this debate is likely to last as long as the Republic does—which suggests that the debate sometimes says as much about the debaters as their subject. Continue reading "It’s “Executive Power,” Not “Executivish Power”"
