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Caste Formalism: The Law and Politics of Equality in India
Full text linkIn modern constitutional democracies, achieving equality has long been a challenge. In recent years, theorists have focused on understanding the meaning of discrimination and determining when and how discrimination becomes problematic. One critical issue that has long animated discussions on both the general guarantee of equality and the specific goals of anti-discrimination law is the relationship between individuals and groups. If a constitutional order aims to take equality seriously, how should it address the experiences of specific groups historically subjected to discrimination? Indeed, questions of equality and discrimination often converge around the issue of affirmative action, sometimes at the expense of a deeper understanding of discrimination itself.
This Article studies the evolution of reservations in India. It argues that the reservations scheme has, over time, come to embody a distinct kind of formalism, namely caste formalism. To understand the emergence and implications of caste formalism requires attending to the development of legal doctrine, the forms of sociological change and political mobilization, and the nature of identity and citizenship
Defending Rule-of-Law Minimalism
Full text linkThe rule of law is a political idea that counts only allies and no enemies. As a popular concept, the rule of law inspires broad rhetorical support. In the United States, for instance, liberals and conservatives alike invoke the “rule of law” as a normative lodestar in political conflicts. Liberals targeting the Trump administration cast their lawsuits as a defense of the rule of law. In parallel fashion, conservatives often charge creative readings of old statutes and ambitious administrative action as departures from the rule of law. It seems that any viable political venture must defend, advance, or at least not disturb the rule of law.
Academic debate, however, begins where political discourse ends. While few scholars dispute whether the rule of law is valuable, there is far less agreement about what the rule of law actually is. As George Fletcher once memorably put it, “[W]e are never quite sure what we mean by the ‘rule of law.’” Among theorists, there are at least two forms of disagreement: substantive and methodological. Consider the first level: substance. Here the traditional division is between “thick” and “thin” notions of the rule of law. Proponents of the thin picture — minimalists — cabin the rule of law to a set of formal characteristics. Maximalists, by contrast, see the rule of law as infused with substantive normative commitments. For them, the rule of law cannot be disentangled from broader values such as democracy, equality, human rights, or constitutionalism. The first and major dividing line in rule of law thinking, then, is between form and substance, thick and thin views of what the rule of law means
Getting to Court is the Hard Part
Full text linkThe article by Quilcaille and colleagues makes a convincing case that heatwaves around the world have been worsened by the combustion of fossil fuels produced mostly by a limited number of companies. This is the latest in a series of climate-attribution studies5 that are demonstrating — with increasing precision — the link between greenhouse-gas emissions and climate impacts
The Behavioral Effects of Corporate GHG Emissions Disclosures
Full text linkIn recent years, roughly 30 nations have implemented regulatory regimes that mandate some type of greenhouse gas (GHG) emissions disclosure from corporations. As GHG emissions disclosure regimes continue to take hold, several key questions arise: will they prompt meaningful and sustained reductions, or will they merely serve to document corporations’ unabated emissions? And if these regimes do lead to lasting emissions reductions, precisely what causes the changes in companies’ behavior? These questions are particularly relevant as climate advocates grapple with the merits of disclosure as a tool for real emissions impact, and as policymakers refine disclosure requirements to best fit their range of environmental and investor protection goals.
This paper reviews the academic literature evaluating mandatory and voluntary GHG emissions disclosure regimes, and analyses key theories of impact, synthesizing the classic “you manage what you measure” justification of corporate disclosure with prevailing social-science models of effective regimes. First, the paper outlines this contemporary theoretical framework for effective “double-embedded” disclosure regimes that depend on feedback loops to drive change, as articulated in landmark publications by Weil, Fung, Graham & Fagotto (2006) and Weil, Graham & Fung (2013). Second, the paper evaluates mandatory and voluntary disclosure regimes’ measured effects on corporate GHG emissions. Because relatively little research has been published on corporate behavioral responses to GHG emissions disclosures, the report also considers case studies of analogous disclosure programs, including the Environmental Protection Agency’s (EPA) Toxic Release Inventory and the Securities and Exchange Commission’s (SEC) executive compensation disclosure regimes. Third, the paper evaluates evidence of causal mechanisms by which reported emissions data can lead to actual emissions reductions. Finally, the paper outlines a research agenda for expanding the empirical evidence on disclosure regimes’ behavioral impacts in the current regulatory environment
Tort Law Heterodoxy in China
Full text linkChinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, spread economic losses through communities, and, when they award substantial sums, act as agents of redistribution. These practices survived the 2021 adoption of the Civil Code, which reduced courts’ discretion to impose equitable liability in tort cases. This study therefore points to several potentially distinctive features of China’s embrace of legal heterodoxy in tort law. Those features include the ongoing influence of China’s socialist and pre-revolutionary legal traditions, divergence between legal provisions and legal practice, and the possibility that heterodox practices will serve bureaucratic interests and Party-state goals along with other social policy goals
Taxes and Tournaments
No full textWhat is the best way to reduce economic inequality? Economists, lawyers, political philosophers, and politicians have pondered this question for decades. Yet there is another group of savvy and highly motivated individuals who have been thinking about redistribution for just as long. Commissioners of the National Football League, the National Basketball Association, the National Hockey League, and Major League Baseball, together with team owners and player unions, have been inventing and reinventing ways to redistribute resources, and they continue to do so today. The same is true of the President of National Collegiate Athletic Association, along with the heads of the Big Ten, Big Twelve, and other powerful athletic conferences. This Article asks what we can learn from their experiences.
The answer, it turns out, is that we can learn quite a bit. Key tax policy questions —whether it is better to have one tax base or many, whether non-tax rules should take distributional effects into account, whether it is better to redistribute in cash or in kind, whether redistribution should take place at the national or local level, and whether predistribution is superior to redistribution — all arise in major sports competitions. Running sports tournaments, it turns out, has more than a little in common with running a tax-and-transfer system. And the general approach reflected in the design of real-world tax systems and professional sports tournaments turns out to be the same: Adopt many plausible solutions instead of searching for a perfect one
Towards Effective Discrimination Testing for Generative AI
No full textGenerative AI (GenAI) models present new challenges in regulating against discriminatory behavior. In this paper, we argue that GenAI fairness research still has not met these challenges; instead, a significant gap remains between existing bias assessment methods and regulatory goals. This leads to ineffective regulation that can allow deployment of reportedly fair, yet actually discriminatory, GenAI systems. Towards remedying this problem, we connect the legal and technical literature around GenAI bias evaluation and identify areas of misalignment. Through four case studies, we demonstrate how this misalignment between fairness testing techniques and regulatory goals can result in discriminatory outcomes in real-world deployments, especially in adaptive or complex environments. We offer practical recommendations for improving discrimination testing to better align with regulatory goals and enhance the reliability of fairness assessments in future deployments
Competence-Competence, Delegation, and the AAA/ICDR Rules
No full textIn 2021 and 2022, the American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR) amended their arbitration rules to address a “potential controversy” said to be caused by the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration. The “potential controversy” is over whether the rules providing that arbitrators have “the power to rule on [their] own jurisdiction” should be interpreted as delegation clauses — that is, as “clearly and unmistakably” delegating exclusive authority to resolve jurisdictional challenges to the arbitrators instead of the court. Most courts have so interpreted the rules.
By contrast, the Restatement interprets the rules as codifying competence-competence doctrine rather than constituting delegation clauses. Under the Restatement interpretation, the rules make it clear that if a party challenges the arbitrators’ authority in arbitration, the arbitrators do not have to suspend the arbitration in order for a court to decide the challenge. But the rules do not exclude the authority of a court to decide jurisdictional challenges raised first in a court proceeding.
The 2021/2022 amendments, which added “without any need to refer such matters first to a court,” simply state what was already implicit in the rules: that the arbitrators’ authority to rule on their own jurisdiction in matters before them means the arbitrators do not “need to refer such matters first to a court.” As such, it reinforces rather than rejects the Restatement interpretation of the rules as codifying competence-competence doctrine rather than constituting delegation clauses
AI Companions and the Lessons of Family Law
No full textVirtual friends and lovers powered by artificial intelligence are rapidly moving to the center of our emotional and social lives. Millions of people turn to AI companions every day for conversation, romance, sexual intimacy, therapy, and education. AI companionship holds promise, potentially reducing loneliness, supporting people without access to mental health treatment, helping students learn, and offering a judgment-free space for sensitive conversations. But AI companionship also raises significant concerns. The technology\u27s addictiveness may exacerbate loneliness and can undermine human relationships. Therapy bots may prove more harmful than helpful. AI companions can be emotionally abusive. And their access to the most intimate aspects of users\u27 lives poses distinct privacy challenges.
As lawmakers and policy experts reckon with the benefits and serious risks of AI companionship, they must account for the distinctive aspects of AI companionship. Unlike interacting with other forms of AI — being driven in an autonomous vehicle, say, or getting help with coding — people are in a relationship with their AI companion. Any regulatory approach must address this relationality, especially the human drive to attach to others and the vulnerability that comes with that attachment.
Legal scholars have long argued that the regulation of technology must account for relationality. This Article demonstrates that family law — the law of relationships — is a ready means to do so. As a foundational matter, any effort to regulate AI companionship must explain why the legal system should act. Family law helps answer this question by debunking the widespread belief that relationships are purely a private matter. Family law establishes the strong state interest in nurturing positive relationships and addressing harm in abusive and neglectful relationships. These state interests apply not only to human relationships but also to human-AI relationships.
Family law also helps answer the question of how to regulate AI companionship. Family law recognizes, for example, that legal intervention is often necessary to shift the power imbalance that facilitates harmful relationships — a lesson that should be applied to the power imbalance between technology companies and people using AI companions. And family law teaches that expertise and licensing are necessary for mental health experts to work with a person at any age, although AI companions marketed for therapeutic purposes have not been subject to similar gatekeeping. Finally, family law holds lessons for advocacy, showing that it is possible to advance reasonable regulation notwithstanding the polarized political climate and considerable antipathy to regulating the technology industry, at least at the federal level. Family law points, for example, towards state-level interventions rather than action by Congress or federal agencies, and it demonstrates the broader acceptance of regulations targeted at minors than at adults.
In short, AI companionship is a new kind of relationship, bringing profound and unrecognized change to the landscape of our intimate lives. Legal scholars and policymakers must start grappling with this new world now. Family law holds great promise to accelerate that reckoning
Emergency Lending by the Federal Reserve
No full textThe Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the Federal Reserve supported a whole-of-government response meant to limit the damage inflicted by a massive shock to the economy while still maintaining its independence with respect to monetary policy