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02. Prospectus: Proposed Text on Constitutional Law
No full textProposal from the early 1990s for what became Erwin Chemerinsky\u27s highly regarded Constitutional Law casebook. The first edition was published in 2001 and the casebook is currently in its fifth edition, published in 2016
03. Law Review articles with Intriguing Titles
No full textTitles from a selection of Chemerinsky’s law review articles showcasing just a small fraction of his contributions to scholarly legal debate throughout his career
Is Everything Securities Fraud?
Full text link“An odd fact of the U.S. legal system for public companies is that every crime is also securities fraud: If a company does a bad thing, and regulators find out about it, then the bad-thing regulators can punish it for doing the bad thing, but the securities regulators can also punish it for not disclosing the bad thing to shareholders. . . . It is a strange combination: Generally speaking the companies do the bad things on behalf of shareholders—to make more money for them—but then the securities regulators come in and fine them for defrauding shareholders.”
-Matt Levine
Securities litigation is a virtually inevitable fact of life for any public company. Often, investors sue because the firm’s managers engaged in fraud that directly harmed the shareholders—say, by doctoring the firm’s financials, or lying about known business prospects. However, shareholders also sue their companies when those companies engage in conduct that primarily harms a different set of constituents. When a drug on the market proves to have dangerous side effects, a faulty car battery bursts into flames, or an oil rig explodes, it’s difficult to say that the most direct victims are the companies’ shareholders. Yet shareholders commonly sue under the federal securities laws based on precisely this kind of conduct, on the basis that the managers should have better disclosed the underlying facts, and investors were harmed by the resulting drop in stock price because they did not. In recent years, these cases, dubbed “event-driven securities litigation,” have become more common and have drawn increasing criticism on the grounds that they are opportunistic and generally lack merit. However, there has so far been no comprehensive examination of these lawsuits.
This paper seeks to fill the gap by investigating the prevalence and attributes of these lawsuits. In a sample from 2010 to 2015, I find that roughly 16.5% of securities class actions arise from conduct where the most direct victims are not shareholders. However, I find that these cases have roughly a 20% lower likelihood of being dismissed and settle for significantly higher amounts. These lawsuits are also more likely to be brought against large defendant firms, more likely to involve an institutional investor as a lead plaintiff, and much more likely to involve a non-SEC investigation or inquiry than cases where the primary victims are shareholders. Many of these attributes are used in the literature as proxies for merit. However, I argue that the merit of these cases is not clear-cut. Further, from a policy perspective, while these cases may have deterrence value, they may not be an optimal means to monitor corporate misconduct that harms outsiders
Lessons from Bostock: Analysis of the Jurisprudential (Mis)Treatment of “Sex” in Title VII Cases
Full text linkThe Supreme Court’s decision in Bostock v. Clayton County extended Title VII’s prohibition on sex discrimination to lesbian, gay, and transgender individuals. This decision represents the latest step forward in a long line of Title VII jurisprudence, which slowly expanded the definition of “sex” as the cultural understanding of sex, gender identity, and sexual orientation improved. This Note critically reviews that history of jurisprudence, using the Bostock decision as a frame to examine the ways in which the courts’ definition of “sex” has evolved out of a flawed understanding of the relationships between sex, gender identity, and sexual orientation as categories. This Note argues that the Bostock decision, while a great victory for gay and transgender plaintiffs, nonetheless leaves unprotected those individuals who do not conform to a binary interpretation of sex in their gender expression or sexual orientation. The Note concludes with a discussion of potential solutions that would guarantee non-discrimination protections for those whose identities do not conform to the gender binary
Limits to Prison Reform
Full text linkCentral to prison reform is the idea that prisons can be humane. Abolitionist scholarship has raised one challenge to this idea, in the form of a structural critique. Prisons, on this account, are social institutions that reflect and reinforce inequality; reform does not disturb those broader injustices, and so cannot cure the problems with prisons. Yes, and prison reform has another problem: there are limits to how humane any prison can be. Prisons are, by definition, instruments of punishment that inflict extreme isolation and control, which are dehumanizing experiences. And reforming prisons is, in some ways, an aesthetic project that is more concerned with the sensibilities of the punishers than the experience of the punished. I develop this argument using Norwegian prisons as a case study—prisons that reformists consider models of humane punishment, but which I describe differently through interviews with people incarcerated there. Part I of this Article situates my argument in abolitionist scholarship. Part II develops a critique of prisons and reform using Norwegian prisons as a case study. Part III mobilizes this critique of prison reform to offer a new account of some limits to prison conditions law. And Part IV suggests a kind of prescription: enforcing the perspective of the punished, rather than the punisher
Recalibrating Patent Protection for COVID-19 Vaccines: A Path to Affordable Access and Equitable Distribution
Full text linkA safe and effective COVID-19 vaccine is the holy grail of our generation, necessary to resurrect our societies, save millions of lives, and protect our economies from collapse. Patent protection is the primary legal mechanism for ensuring timely development of such a vaccine. The patent system is designed to create the necessary incentives for private parties to invest in developing the vaccine, knowing they will enjoy the fruits of their success. Indeed, patent protection is necessary to promote human knowledge generally as well as a quick, safe, and effective COVID-19 vaccine.
Yet in reality, patent law may be obstructing the very goal it is intended to achieve. Patent law grants exclusive rights to inventors, enabling them to charge supracompetitive prices, delaying the distribution and dissemination of emerging technologies. In the context of the COVID-19 vaccine, patent protection means that vaccines will be financially out of reach for many. This produces a paradoxical result: rather than promote technological advancement for the public good, patent protection impedes it. Since universal immunity is necessary in the fight against the pandemic, delays in vaccine distribution can be catastrophic, costing millions of lives and carrying devastating economic consequences.
This Article therefore proposes a novel, alternative patent regime, designed to overcome this paradox at the heart of patent law. We propose a mechanism that will eliminate the problem of overprotection of patent rights that exists under current patent law, while still providing sufficient incentive for inventors to invest in innovative efforts. Under our proposed regime, the developer of a new vaccine will be granted a patent protecting its invention, but this patent will expire once the patentee has recouped its investment, plus a handsome profit. This regime, which we term “recoupment patent,” ensures that inventors are rewarded appropriately—but not excessively—for their innovative efforts. The result is a structure that encourages innovation while minimizing the time it takes for life-saving inventions to reach the public domain. We compare the proposed regime with other suggestions for reforming the patent system, including compulsory licensing; government incentives such as grants, subsidies, and prizes; and altruistic initiatives such as private-public partnerships, patent pools, and patent pledges. We highlight the recoupment patent model’s advantages over these alternatives
Letting the Cat out of the Bag: How Lack of Access to Animal Companionship and Husbandry Fosters Inequality for Black Americans
Full text linkThroughout American history, animals have been used by those in power to harm and terrorize Black Americans. While state-sanctioned use of slave-patrol and police dogs have been a commonly discussed issue, there has been little to no analysis on the harms Black Americans have faced from the systemic deprivation of animal companionship and husbandry. Racism and capitalism in America have resulted in a confusing labyrinth of private actors, animal organizations, corporate industries, courts, and legislators who have worked collectively to cut off opportunities for Black Americans to benefit from animal companionship and husbandry.
In Part I, this Note discusses the vital benefits that humans have derived from animal companionship and husbandry. Part II presents an overview of the multitude of ways Black Americans have been systematically deprived of the benefits of animal companionship and husbandry. Part III provides examples of potential changes that could be made to create new animal-related opportunities for Black Americans. Due to the breadth of this topic, it is my intention that this Note will inspire further research and discussion on the role of animals in upholding structures of violence and inequality, the overlooked significance of animals in uplifting marginalized people, and the ways that the dominant culture has imposed its attitudes toward animals on society to the detriment of minority cultures
Time, Equity, and Sexual Harassment
Full text linkSexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.
The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.
This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct
Adventures in the Article V Wonderland: Justiciability and Legal Sufficiency of the ERA Ratifications
Full text linkThis Article examines the paradoxical world of Article V—the amending power of the Constitution—in light of the recent ratification of the Equal Rights Amendment (ERA). It explores the question of whether Article V issues are justiciable, what role the federal and state courts play in determining Article V procedures, and who has the jurisdiction to evaluate the legal sufficiency of state ratifications. This is a confounding area of law, and with a few judicial precedents, some textualism and originalism arguments, and recourse to logic and scholarship, I conclude that the ERA is validly the Twenty-Eighth Amendment. I provide a detailed analysis of the congressional deadline and rescission issues that are currently before the courts and explore the unique role of the states in exercising their Article V powers to effect constitutional change
Statutory Interpretation and Chevron Deference in the Appellate Courts: An Empirical Analysis
Full text linkWhat statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations. It then compared how use of those methods varied depending on whether or not the appeals court expressly cited or applied Chevron.
Most notable was how appellate courts used precedent and policy in contrasting ways when ruling on Board statutory interpretation cases. While precedent was used more when courts reversed the Board’s pro-employee interpretation to reach an anti-employee outcome, courts referenced policy more to uphold Board rulings that were pro-employee in orientation. Both Democrat- and Republican-majority courts exhibited different tendencies in their choice of methods as well. When ruling on anti-employee interpretations, Democrat-majority courts often cited and relied on text more than Republican-majority courts. In addition, Republican-majority courts disproportionately used substantive canons to uphold anti-employee interpretations while Democrat-majority courts favored language canons when reversing such appeals.
The study also yielded interesting observations about Chevron deference. Courts citing and applying Chevron had much higher agency-win rates than when Chevron was not used. Courts overwhelmingly cited Chevron or employed a Chevron-like “reasonableness” standard more when they upheld the agency’s statutory interpretation than when they reversed the agency, thus suggesting that courts may use Chevron to cabin judges’ ideological proclivities. The study also revealed a divergence in statutory methods depending on how a court employed Chevron. Courts expressly citing the Chevron two-step framework cited and relied on the statutory text and employed language canons more in the writing of the opinion than when they did not specifically cite Chevron. In addition, Republican-majority courts upholding Board interpretations often employed substantive canons more when citing Chevron than when not. Chevron-citing courts also disproportionately invoked policy considerations compared to non-Chevron-citing courts when upholding the Board’s interpretation. Courts declining to cite or apply Chevron at all had different tendencies. Those that declined to cite Chevron, or employ even a similar Chevron-like “reasonableness” standard, were more likely to cite precedent. Substantive canons were also employed to reverse the Board’s interpretation more by courts that declined to apply Chevron than courts that applied Chevron or a Chevron-like reasonableness standard.
Although the study is limited to one area of law and to the workings of a single agency—and one of the most politically charged agencies at that—it offers fresh insight into how empirical analysis can be used to look beyond the black box of federal court statutory interpretation and Chevron deference to see what shapes judicial opinions in their review of agency statutory interpretations