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Fair and Impartial Adjudication
Get PDFAny legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.
A dispute arising under law is a claim by one individual or entity that another individual or entity has acted in a manner contrary to law. Most commonly, such disputes revolve around historical facts. For example, A claims B did something that, if true, means B acted contrary to law; and B denies that he did what A claims. Sometimes adjudicators must resolve conflicting claims about the applicable law. And sometimes they must resolve both the facts and the law. Disputes arising under law often pit one private person or entity against another. Other times they involve a dispute between the government and a private person or entity. The difficulty of ensuring fair and impartial adjudication is greatest in this latter context, when the government squares off against some nongovernmental person or entity.
The U.S. Constitution contains two strategies for securing fair and impartial adjudication. One is reflected in Article III; the other is found in the Due Process Clauses of the Fifth and Fourteenth Amendments. Part I of this Article describes these constitutional strategies and explains how each was originally envisioned as securing fair and impartial adjudication of disputes under law. Part II describes how each strategy, over time, has failed to provide a general guarantee of fair and impartial adjudication. Part III concludes with some tentative thoughts about restorative measures that might correct, at least to some degree, the deficiencies that have emerged in assuring fair and impartial adjudication over time
Law Professors File Amicus Brief on Religious Liberty Rights in Appeal from Criminal Conviction of AZ Immigrants Rights Activists
Get PDFNationally recognized law professors with expertise in religious liberty law filed an amicus brief in the appeal of the convictions of four sanctuary activists who were found guilty in January of the crime of leaving water and food in the desert for migrants. The activists were volunteers with the group No More Deaths/No Más Muertes, and have petitioned a federal court in Arizona to reverse their conviction after a three-day trial
Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn
Get PDFA fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that it must be resolved to protect diverse family forms. This Note surveys the “functional turn” in state family law and develops a novel historical account of the shifting definition of family in zoning law, documenting its “formal turn.” It then offers normative and practical reasons why the definition of family should be loosened, offering recommendations for legislative and judicial reform
A Reconsideration of Copyright\u27s Term
Get PDFFor well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release (and in many cases, far sooner than that).
Our analysis suggests at least two results of interest to legislators, lawyers, and scholars alike. First, it contributes to the normative debate around copyright’s incentive–access paradigm by proposing a more efficient conception of copyright’s term for information goods: namely, one that replaces the conventional “life plus” durational standard with one based on the commercial viability of the average work. Second, it demonstrates that advocates’ and legislators’ tendency to focus on atypical works leads to overprotection of the average work, suggesting that copyright’s term is not nearly as significant for copyright owners as conventional wisdom submits
An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act
Get PDFThere is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American – in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.
By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes – one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly
An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection
Get PDFFor the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a university’s affirmative-action plan that specifically targets Black women, the Essay considers what tier of scrutiny should apply. Because, for the most part, scholars take a race or gender approach to equal protection law, they have not engaged that doctrinal puzzle and its implications for tiers-of-scrutiny writ large
We Still Have Not Learned from Anita Hill\u27s Testimony
Get PDFTwenty-seven years after Anita Hill testified in front of the Senate Judiciary Committee that Clarence Thomas sexually harassed her, and as Christine Blasey Ford prepares to testify that Brett Kavanaugh sexually assaulted her when they were teenagers, we still have not learned our mistakes from that mess in 1991.
Most people recognized that it looked bad, a black woman fending for herself in front of a group of white men. Yet we can’t acknowledge the central tragedy of 1991 – the false tension between feminist and antiracist movements.
We are still ignoring the unique vulnerability of black women
Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda
Get PDFThis Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein\u27s response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often takes two to play, both sides must be playing it in a similar manner. Shugerman\u27s response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein\u27s approach would set back the burgeoning effort to study constitutional hardball, Shugerman\u27s distinction between hardball and beanball provides a useful starting point for theorizing the conditions under which constitutional hardball may be more or less justified as a matter of political and constitutional morality
What Can We Learn from Stock Prices? Cash Flow, Risk and Shareholder Welfare
Get PDFPrice is expected cash flows discounted at the risk-free rate plus an additional discount for risk exposure. Price equivalency does not always imply welfare equivalency: shareholders are not necessarily indifferent between a price increase of 1 increase from lower risk exposure. Even in complete markets, if managers enjoy private benefits of control, the social planner may prefer lower risk exposure to a price-equivalent increase in firm value from greater investor protection. This has implications for event studies, the trade-off between principal costs and agency costs, and the link between macroeconomic risk and corporate governance
Choice of Law in Takings Cases
Get PDFThis Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. It argues that there are three choices: federal constitutional law, state law, or a federal-patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The article illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a matter of federal constitutional law. It argues that the wholesale federalization of the issue in this context was misguided. A better solution would be to adopt a federal-patterning definition of “parcel,” which would largely resolve the issue by looking to applicable state law unless affirmative evidence shows that parcel boundaries have been manipulated to manufacture a takings claim