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Historic Preservation: Launched From Grand Central Terminal, But Derailing
Get PDFIn Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as historic and therefore restricting its development, it is not a taking of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America\u27s cities. But it\u27s time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has wreaked havoc on America\u27s housing supply and economy. Thus, under the Court\u27s stated stare decisis factors, Penn Central is a decision that deserves to be overturned, narrowed, or at least revisited
The Accidental Innovation Policymakers
Get PDFHealth care policymakers in the United States, particularly at the federal level, have recently considered a range of proposals that would lower prices for prescription drugs. The pharmaceutical industry and many politicians have argued that these proposals would harm innovation incentives, resulting in fewer new drugs coming to market in the future. This Article identifies and explores a key problem with this argument: that it is typically deployed both accidentally and asymmetrically in nature. Specifically, this Article considers previous changes to health laws that had the impact of increasing innovation incentives by providing large new subsidies to pharmaceutical companies—chiefly the creation of Medicare Part D and the passage of the Affordable Care Act—but where policymakers appear not to have analyzed these innovation-related aspects of the new laws. By contrasting these laws with others in which policymakers explicitly centered the innovation-related impacts of their actions, such as the Hatch-Waxman Act and the Orphan Drug Act, this Article suggests that policymakers may in some cases be making innovation policy “by accident,” without knowledge of their likely results. These innovation arguments are also deployed asymmetrically by interested stakeholders, creating the potential for unbalanced policymaking over time. This Article further analyzes the implications of this accidental, asymmetric policymaking for innovation law and policy
No Harm, No Problem (In State Court): Why States Should Reject Injury in Fact
Get PDFNew judicial federalism urges states to extend their constitutional protections beyond the federal Constitution’s. Yet the scholarship has largely ignored justiciability doctrines—including standing—that dictate the requirements for suing in court. Meanwhile, the federal injury in fact requirement has been debated for years, with critics claiming it is ahistorical and overly restrictive. States, though, are not bound by Article III and can reject the federal standing doctrine. Some states have. In fact, the same year the Supreme Court doubled down on injury in fact by stating “no concrete harm, no standing,” the North Carolina Supreme Court rejected injury in fact and adopted a more permissive legal injury requirement. But the North Carolina Supreme Court’s main rationale was that the federal doctrine is wrong itself. This rests on the mistaken assumption that state and federal courts should have the same standing doctrines. On the contrary, states are not tied to the federal doctrine in any way. This Note explains why states should reject the federal doctrine regardless of whether it is right for federal courts: injury in fact addresses uniquely federal concerns. Federal power grew in response to federal crises and political realities, and, in reaction, the Court used injury in fact to pull the federal judiciary back within its intended limits. Thus, the concerns and values underlying injury in fact are inapplicable to states. Instead of adopting injury in fact, states should adopt more permissive standing doctrines. Such doctrines would be consistent with states’ broader judicial power and would effectuate the goals of the new judicial federalism
Intellectual Property and National Security
No full textProf. Arti Rai discusses the relationship between intellectual property and national security.
Speaker: Prof. Arti Rai, Elvin R. Latty Professor of Law and Faculty Director, The Center for Innovation Policy, Duke La
Jurisprudential Hypocrisy Under Israel\u27s Normative Umbrella: Punitive Demolitions as Pre-Conviction, Collective Punishment in the West Bank
Get PDFSince the termination of the British Mandate in 1948 and Israel\u27s subsequent occupation of Palestine, the Israeli government has punitively demolished hundreds of Palestinian homes in the West Bank. After a slight downturn during COVID-19, numbers are once again on the rise. Israel\u27s punitive demolition strategy targets the innocent families of Palestinians allegedly involved in security offenses against Israel. When a suspected offender is detained, Israel orders the demolition of their family home—usually, before the suspect is tried or convicted, and regardless of whether they own or permanently reside in the house. In support of its punitive demolition campaign, Israel cites Regulation 119, a British Mandate-era law sustained by and parasitic to Israel\u27s perpetual state of emergency. Regulation 119 affords broad discretion to the Israeli military in ordering punitive demolitions and is met with considerable deference from the Israeli High Court of Justice. However, this Note contends that Israel\u27s punitive housing demolition strategy creates tension with due process norms elsewhere affirmed in Israeli jurisprudence. First, punitive demolitions violate Israel\u27s respect for fair trial rights and the presumption of innocence, unlawfully constituting pre-conviction punishment. Second, they defy Israel\u27s esteem for individual responsibility, manifesting collective punishment. Given Israel\u27s stated desire for legal consistency and normative harmony, it is incumbent on the High Court to resolve the jurisprudential hypocrisy inherent in its treatment of punitive demolition orders and to curtail Regulation 119
Legal Ethics After #MeToo: Autonomy, Domination, and Nondisclosure Agreements
Get PDFThe legal profession has long embraced what is called the “standard conception” of legal ethics, the prevailing model guiding the social and professional norms of American lawyers since at least the 1970s. The standard conception requires lawyers to promote their clients’ interests vigorously within the bounds of law and urges lawyers to be morally neutral toward lawful client ends, regardless of even the predictable consequences of their representations, including any harms inflicted on third parties or the public at large. Central to the most prominent defenses of the standard conception is the value of individual autonomy, specifically the client’s. According to these defenses, when lawyers help to preserve and express the autonomy of clients vis-à-vis the legal system, lawyers provide a moral good.
This article challenges the standard conception—specifically, the critical role that “autonomy” plays in its justification. It calls for an alternative model of legal ethics that draws from the republican intellectual tradition. Part I reviews some of the leading defenses of the standard conception and shows how they have identified autonomy as a core value underlying the standard conception. Part II interrogates the notoriously nebulous notion of autonomy and teases out its various entailments, including the distinction between negative liberty and positive liberty—concepts which have been integral to all major modern political philosophical traditions, including the classical and contemporary liberal traditions, which have provided the intellectual grounding for the standard conception. With these distinctions in hand, Part III explains how the standard conception exacts an “autonomy appropriation” from lawyers to their clients in disproportionate and regressive ways. It argues that the standard conception violates the very value used to justify its existence. Part IV looks outward from the bilateral relationship between lawyer and client to think about the impact on third parties and raises the “autonomy externality” problem. It argues that, even if we stay laser-focused on the value of autonomy alone, clients’ exercise of their autonomy can undermine the autonomy of others. Hence, lawyers’ enhancement of their clients’ autonomy can simultaneously undermine the autonomy of third persons. To explore the autonomy externality problem in stark, real-world terms, Part IV conducts a case study of pre-filing nondisclosure agreements (“NDAs”) used by lawyers to settle sexual abuse claims made against powerful clients. It shows how lawyers who recommend, negotiate, and draft NDAs on behalf of their clients undermine the autonomy of third persons by enabling repeat sexual abuse. What is more, the justifications for the standard conception are paralyzed by a commitment to value neutrality, making the standard conception ill-equipped to assess autonomy tradeoffs between the client and third parties, such as with NDAs. Part V introduces an alternative conception of autonomy, based on the republican notion of liberty. Whereas liberal understandings of autonomy emphasize negative and certain forms of positive liberty, the republican conception of autonomy is the absence of domination. Returning to the case study of NDAs, it argues that an alternative model of legal ethics based on republican liberty is better able to assess autonomy tradeoffs and to provide moral guidance that better comports with our sense that some incursions on autonomy are more serious than others. It then offers suggestions on how we might rekindle the civic virtue of the legal profession around the value of republican liberty. Part VI answers objections that a republican conception of legal ethics would perversely lead to lawyers dominating clients or be inferior to the direct regulation of autonomy externalities
America\u27s Other Separation of Powers Tradition
Get PDFAs the Supreme Court returns many critical issues to the states, the structure of state government is increasingly significant to the American constitutional order. From redistricting to reproductive rights, battles are raging over which state institutions should decide these important issues. Yet there is surprisingly little scholarship dedicated to the separation of powers under state constitutions. Instead, state doctrine and commentary tend to mimic themes in federal constitutional law and parrot Madisonian ideas of constitutional design. On this view, the separation of powers is based on carefully balanced intragovernment rivalries fueled by the private ambition of government officers. This competition within government is part of a broader Madisonian strategy to protect against abusive popular majorities and prop up representative institutions. Although this approach is criticized, it is at the core of the federal Constitution’s design, and it remains the dominant lens through which American courts and scholars view the separation of powers.
This Article provides a novel assessment of whether state constitutions incorporate a wholly different approach to the separation of powers. I argue that viewing state constitutions exclusively through a Madisonian lens provides an incomplete and misguided account. Drawing on largely neglected state constitutional history, an original hand-coded database of state constitutional texts from 1776 until 2022, and an extensive review of state constitutional convention debates, I argue that state constitutions insist on the separation of powers—not primarily to pit ambition against ambition within government—but to enhance the public’s ability to monitor government from the outside. To be sure, state constitutions leverage internal checks and balances, but this is not the only (or even the primary) logic underlying the separation of powers in state constitutions. A fundamental reason that state constitutions separate power is to address the concern that self-interested officials are likely to collude across branches rather than compete; thereby short-circuiting intragovernment checks. The best antidote for this is to increase the quality of direct popular oversight. By clearly organizing and separating government into discrete departments and subdepartments, the public is better equipped to monitor government because responsibility is more isolated. This approach to the separation of powers, which I call the “popular accountability” rationale, is at the core of state constitutional design and government structure.
Consequently, state constitutions do not depend on an archetypal tripartite division of government power or vigilant judicial maintenance of internal checks and balances because they do not expect that government will self-regulate without persistent and pervasive popular involvement. Instead, state constitutions work to separate government along lines that allow the public to track and respond to malfeasance on salient issues. Those lines are often highly contextual and reactive. That is why state constitutions boldly ascribe to the separation of powers while simultaneously creating myriad ad hoc elected offices and specialized departments that blend and obfuscate the traditional tripartite model. This Article concludes by sketching the beginnings of a more authentic state separation-of-powers jurisprudence that views the doctrine principally as a tool in service of popular accountability rather than a constraint on democratic outputs. It also illustrates how this approach would restructure and improve outcomes in fundamental areas such as the nondelegation doctrine and administrative deference while enhancing the democratic commitments at the core of state constitutional design