Monthly Archives: July 2024
Jul 31, 2024 James GrimmelmannTechnology Law
Sarah B. Lawsky’s Coding the Code: Catala and Computationally Accessible Tax Law offers an exceptionally thoughtful perspective on the automation of legal rules. It provides not just a nuanced analysis of the consequences of translating legal doctrines into computer programs (something many other scholars have done), but also a tutorial in how to do so effectively, with fidelity to the internal structure of law and humility about what computers do and don’t do well.
Coding the Code builds on Lawsky’s previous work on formal logic and its advantages for statutory interpretation. (Formal logic, sometimes called “symbolic” or “mathematical” logic, involves the precise and rigorous analysis of symbolic expressions representing arguments, such as “p & ¬q” to mean “p is true and q is not true”.) In her 2017 A Logic for Statutes, she observed that many statutory provisions have a characteristic structure: rules subject to exceptions. A typical rule says that WHEN certain conditions are satisfied, THEN certain consequences follow, UNLESS one of several exceptions applies. Exceptions have exceptions of their own: interest payments are deductible, unless they are personal, unless they are mortgage payments. Continue reading "When Law is Code"
Jul 30, 2024 Adam RosenzweigTax Law
Rebecca M. Kysar,
The Global Tax Deal and the New International Economic Governance, __
N.Y.U. Tax L. Rev. __ (forthcoming), available at
SSRN (May 16, 2024).
In 1944 forty-four nations signed an agreement in Bretton Woods, New Hampshire, which laid the foundation for what would become the modern international economic system. The so-called Bretton Woods system was built on the commitments to free and open trade, stable monetary exchange markets, and investments in global public goods. One of the motivating factors underlying the Bretton Woods agreement was to prevent the kind of trade protectionism, isolationism, and hyperinflation that had been seen as some of the geopolitical factors ultimately leading to World War II. While the Bretton Woods agreement itself only lasted until 1971, the commitment to liberalized trade, liquid currency markets, and investments in global public goods continued and came to be known collectively as the “Washington Consensus.”
In recent years, however, cracks have begun to emerge in the Washington Consensus under the stress of the Financial Crisis, the COVID pandemic, and increased protectionism and trade wars. At the same time, the Organization for Economic Cooperation and Development (OECD) began the single most significant overhaul of the global tax regime since its inception through its Base Erosion and Profit Shifting (BEPS) project. Over one hundred and forty countries eventually reached near universal agreement on fifteen separate Action Items fundamentally overhauling the international tax regime. This success stands in stark contrast to the otherwise perceived crumbling of the Washington Consensus. Was this merely another notable example of tax exceptionalism? Or could the success of BEPS serve as a model for revitalizing the Washington Consensus?
Professor Rebecca M. Kysar intervenes in this debate in her new article, The Global Tax Deal and the New International Economic Governance. The underlying premise of the article provides that the success of the BEPS negotiations proves the demise of the Washington Consensus, not its survival. Continue reading "Is There Finally a New World (Economic) Order?"
Jul 29, 2024 Barbara LevenbookJurisprudence
The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism. Continue reading "It Goes Without Saying in Justifying Criminal Punishment"
Jul 26, 2024 Scott CummingsLegal Profession
Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign Reform Act 2002 (BCRA), otherwise known as the McCain-Feingold law.
Southworth’s aim is not to explain or defend the doctrine resulting from this campaign, but rather to uncover the “process that generated” it. (P. 2.) She does so by analyzing “how lawyers and other key actors worked with the justices to create that law, borrowing a litigation strategy pioneered by the NAACP Legal Defense Fund to dismantle racial segregation and using it to advance a very different type of cause.” (P. 2.) Southworth mobilizes a trove of primary research, which includes data on the political alignments and financial supporters of organizations filing briefs in Roberts Court campaign finance cases (Citizens United (2010), Arizona Free Enterprise Club v. Bennett (2011), and McCutcheon v. FEC (2014)), language analysis of arguments in briefs filed in twelve Supreme Court cases since the 1970s, and interviews with fifty-two lawyers who participated on both sides of the campaign. It is a testament to Southworth’s careful scholarship and status as a scholar both sides respect that she was able to gain access to lawyers on this deeply polarizing political issue. Continue reading "How the Conservative Legal Movement Gave First Amendment Rights to Corporations—and Why It Matters Now"
Jul 25, 2024 Aliza BloomCriminal Law
Criminal law scholars have long been concerned with the system’s pervasive harms to race and class-subjugated communities, and more recently they observe the subordinating functions of criminal law and procedure. In their fascinating new study, G. Ben Cohen, Justin B. Levinson, and Koichi Hioki present data on the connection between race and group-imposed liability. Their paper critiquing the racially disparate application of felony murder and accomplice liability supplements this conversation with empirical findings that racial bias affects perceptions of who is acting alone versus in concert with others. I believe that these psychological findings are also relevant to discretionary policing. Just as implicit racial bias affects courts and juries’ application of felony murder and accomplice liability, it affects the assumption of group liability in police decisions to surveil, approach, interrogate and arrest young people associating in groups in public spaces.
Cohen, Levinson and Hioki address the operation of racial bias in homicide doctrine. First, they detail the pervasive critiques of felony murder and accomplice liability, which “sit at the fulcrum of the criminal legal system’s false promise of individualized moral culpability.” These doctrines eliminate a prosecutor’s need to prove either of the core elements of murder: that the individual committed the act (actus reus) or that they intended to do so (mens rea). Courts engage in a problematic inquiry where intent and action are inferred, providing fertile grounds for racial bias. The Court grappled with felony murder but ultimately found that even the death penalty does not violate the Eighth or Fourteenth Amendments where a person, without intent to kill, had a “major participation in the felony committed, combined with reckless indifference to human life.” And despite the fact that accomplice liability undermines fundamental notions of individualized guilt, it has become a powerful tool, especially for statutes defining offenses based on group affiliations including gang enforcement, and RICO charges. As the authors explain, prosecuting people for felony murder and accomplice liability addresses a problem that does not exist because accomplices are already punished for their actual crimes. Continue reading "Assuming Collective Criminality in Policing"
Jul 24, 2024 David FagundesIntellectual Property Law
Andres Sawicki,
The Law of Creativity?, __
Cornell L. Rev. __ (forthcoming 2025), available at
SSRN (Aug. 28, 2023).
If you jostle an IP scholar awake in the middle of the night and ask them, “What is the canonical justification for copyright and patent,” the first thing they’ll say is, “What the hell are you doing in my bedroom?” But the second thing they’ll say is, “Limited exclusive rights in works of authorship and inventions are necessary to preserve incentives to create them.” Or as Samuel Johnson more bluntly put it, “No man but a blockhead ever wrote, but for money.”
Everyone knows that this is the received wisdom. But strangely, at the same time, no one actually believes it. Intuitive counterexamples to Johnson’s “blockhead” comment are easy to conjure. Authors often produce content with zero expectation of remuneration simply because they have something to say and want to share it with others. Scientists engage in pure research because they want to contribute to how we understand the world (and also because they are paid a salary, by universities, or drug companies, etc.). Developers produce innovations not only to become the next Uber or Google but to improve others’ lives and for the love of making stuff. Continue reading "Samuel Johnson Was a Blockhead"
Jul 23, 2024 Jedidiah KronckeInternational & Comparative Law
J. Benton Heath,
Economic Sanctions as Legal Ordering, __
Mich. J. of Int’l. L. __ (forthcoming, 2024), available at
SSRN (Jan. 31, 2024).
The issue of economic sanctions has become a near routine aspect of the contemporary news cycle. While many such regimes are now decades old, the enactment and modification of sanctions has become the most pervasive form of coercion practiced among modern nation-states. In his article Economic Sanctions as Legal Ordering (hereinafter ESLO), J. Benton Heath confronts the contemporary normalization of sanctions with a decisively unsettling transnational intervention: the role of early 20th century Chinese consumer boycotts in stimulating many elements now taken for granted in modern sanction regimes. In recovering the force of this neglected precedent, Heath helps us better understand what is and isn’t new about the recent intensification of economic sanctions while also providing a powerful example of the increasingly undeniable necessity of transnationalizing how we understand the origins of contemporary international legal developments.
Heath’s central argument in ESLO is that the largely civil-society-led Chinese consumer boycotts that emerged at the beginning of the 20th century were what he calls an “insurgent legal ordering.” This insurgency was organized beyond the bounds of what the modern international legal order took to be its unit of analysis—the nation-state—and over four decades its accomplishments shaped how economic warfare came to be legally disciplined. The importance of this pre-World War II provocation joins an increasingly wide range of scholarship as to how Chinese actors and arenas were far more central to the development of the modern international legal order than has been historically recognized. Heath here combines a synthesis of existing works on Chinese boycotts with original archival research into how the force of these boycotts were interpreted by the dominant architects of the evolving early 20th-century international legal order. Continue reading "Taming Legal Insurgency: An Unruly Counter-History of Economic Sanctions"
Jul 22, 2024 Natsu Taylor SaitoEquality
In her very timely Imperialism and Black Dissent, Nina Farnia proposes that the jurisprudence of political speech and association is best explained not by abstract principles of constitutional law but by a context in which domestic movements intersect with the global projection of American political and military power. Using case studies from four phases of racial resistance in the United States—Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives—she disrupts the commonly accepted narrative that both First Amendment jurisprudence and the state’s targeting of particular ideologies are “colorblind” processes.
For Farnia, “[b]ecause domestic security in the United States necessarily involves the management and suppression of racialized rebellion and radical dissent, national security ideology and the First Amendment cannot be decoupled.” (P. 403, emphasis added.) What’s interesting here is not the fraught relationship between individual rights and collective security—we’ve circled that rock often enough since 9/11—but Farnia’s thoughtful and detailed discussion of the interplay of ideological and racial repression. Continue reading "Ghosted? Race, Repression, and The First Amendment"
Jul 19, 2024 Brian FarkasLexInternational Arbitration
If you ask most practitioners to describe the rules of evidence in arbitration, they’re likely to respond with three words: the Wild West. Recent scholarship by Henry Zhuhao Wang peeks into the black box of arbitral hearings to expand—and complicate—our understanding of this untamed landscape.
When I teach arbitration, I bring a prop to one of the class sessions: an evidence textbook. I ask how many have taken a course on evidence. About three-quarters of the students’ hands shoot up. I ask them to look at the book as I hold it above my head. Notice its thickness. Its height. Its weight. The hard cover and thin pages. I ask them to remember the feeling of schlepping it to class. I ask them to remember the rules. The exceptions to the rules. The exceptions to the exceptions. Continue reading "Evidence in Arbitration: Should the Wild West be Tamed?"
Jul 18, 2024 Zack BuckHealth Law
Legal scholarship frequently deals with the theoretical: a scholar identifies an interesting legal problem or inconsistency, and by applying an incisive legal analysis, attempts to solve it. This is the typical process of the legal academic. This endeavor and type of legal scholarship and focus is important, and may even be prescient, but—to echo a well-worn critique—it may often lack real-world and immediate practical effect.
This is not the case for Professor Jessica Mantel, who, colleagues know, is an important voice within health law scholarship, and is well-known for her clarifying work on health care finance topics in an era of dynamic change. Her work is grounded in practical import. Professor Mantel shows her range through her recent work, exemplified by Age is More Than Just a Number: A Legal and Ethical Defense of Age-Based Triage Protocols. This work is particularly important in a world and a field that has been pressure-tested and scrambled following the COVID-19 pandemic. Continue reading "Implementing Age-Related Triage Protocols"
