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Working to Death: Labor Law in the 100 Year Life
Get PDFWithout significant changes in labor law, the 100-year life will almost certainly be defined by deep inequities. Working-class people, and workers of color in particular, are least likely to enjoy extended life spans. And if they do live longer, they are unlikely to enjoy a leisurely retirement in which they decide how they spend their extra years. Instead, they will face more toil and precarity. This chapter imagines a different future. It asks: What would the 100-year life look like if working people had a greater hand in shaping it? What would a legal regime look like that gave working people power to affect decisions about how work is structured and how resources are distributed in the era of the 100-year life? How might we reimagine labor law for a more just and equitable 100-year life
Exorcising Hobbes\u27s Ghost: A Future for Constitutional and International Law
Get PDFDaryl Levinson wants to liberate constitutional law from the ghost of Thomas Hobbes. More than 350 years ago, Hobbes advanced a conception of law that, for all the efforts to move past it, continues to resonate. In the strictest iteration of the Hobbesian conception, law cannot exist apart from Leviathan, a sovereign state that is the “sole source of legal authority” in a defined territory. As the only possible source of law, Leviathan cannot itself be subject to law. “[I]t exercise[s] legally limitless power over its citizens and interact[s] with other Leviathans in a lawless international arena”. It is also the source of “supreme coercive force” in its territory. This unique combination — the absolute authority to issue binding commands for its subjects to follow, plus the capacity to use overriding coercion against those who might stray — is, in the Hobbesian conception, necessary for law to work
The Market Inside the Market: Odd-Lot Quotes
No full textWe show current market practices relating to odd-lot quotes create a large “inside” market where better prices routinely exist relative to the National Best Bid or Offer. We show that odd-lot quotes play a price discovery role, and these quotes provide valuable information to traders with access to proprietary data feeds. Using a XGBoost machine learning algorithm that uses odd-lot data to predict future prices, we demonstrate a simple and profitable trading strategy. We argue the SEC’s proposed round-lot redefinition reduces — but does not eliminate — the high incidence of superior odd-lot quotes within the NBBO
Regulation of Ocean Alkalinity Enhancement in Washington State
Get PDFThis paper focuses on one commonly-discussed ocean carbon dioxide removal approach, ocean alkalinity enhancement (“OAE”), which involves adding alkaline substances to ocean waters in order to increase their ability to uptake carbon dioxide from the atmosphere. OAE also has the potential to mitigate ocean acidification, which has been worsening globally due to climate change, and has threatened marine life and industries in places like Washington State.
There is significant interest in pursuing OAE off the coast of Washington state. This paper examines the legal framework for OAE projects in Washington State. As we explain, OAE projects conducted in near-shore areas off Washington’s coast may be regulated under various environmental and other laws adopted at the local, tribal, state, and federal levels
Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022
Get PDFHow does the push and pull between law and politics shape the work of executive branch lawyers charged with providing “neutral” interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Using a new dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC) in the Department of Justice (DOJ), I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions.
Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture.
These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC’s language use casts doubt on the prospect that high-ranking executive branch lawyers will act as “neutral expositors” when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against — or alternatively facilitating — democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms
Caste Formalism: The Law and Politics of Equality in India
Get PDFIn 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
Get PDFThe 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
Get PDFThe 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
Get PDFIn 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
Get PDFChinese 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