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Make All the Laws You Want: The Catholic Left Against Legal Liberalism, Circa 1968
Get PDFIn this article, I bring the history of Catholic radicalism into conversation with legal history. Although there is an extensive historical literature on Catholic responses to the Vietnam War and other 1960s upheavals, this historiography has remained siloed from legal scholarship. Legal scholars (particularly outside of Catholic legal circles) have devoted little attention to figures like Merton, Furfey, and participants in the Catholic “ultraresistance” against the Vietnam War. In scholarly accounts of how social movements remade and reacted to constitutional law, Catholic activism is typically discussed, if at all, in the context of contraception and abortion debates. In broad outlines, the pro-life movement fits the recognizable paradigm in which a social movement organizes around a long-term goal of reversing adverse Supreme Court precedent. Catholic antiwar mobilization may appear less relevant to legal history precisely because its participants were often performatively uninterested in law. But even if their engagement took the form of critique, figures on and around the Catholic left also circulated ideas about the relationship between law, society, and political change. By expanding conceptions of what it means to be involved in legal history, it is possible to see that these figures also partook in American legal culture, in important if unconventional ways. Religious and social historians have developed rich accounts of the Catholic left’s experiences as targets of the law, which can also be mined for insight into these figures’ ideas and attitudes about the law in contrast with the mainstream legal liberalism of the 1960s
DELAWARE SUPREME COURT REQUIRES STOCKHOLDER VOTE TO APPROVE COMPANY’S TRANSFER OF PLEDGED ASSETS TO SATISFY DEFAULTED DEBT
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Combatting a Crisis of Global Food Protectionism Sparked by the War in Ukraine
Get PDFThe world is currently gripped in a food crisis of historic proportions that is threatening tens of millions of people in the poorest countries of the world with famine and starvation. Sparked by the war in Ukraine, this crisis is being made worse by nations imposing export restrictions on food in a misguided attempt to curb soaring domestic food prices. Export restrictions are beggar-thy-neighbor policies that prevent increases in domestic food prices but at the expense of raising world prices, exacerbating the crisis. Although nations have turned to the World Trade Organization (WTO) for help in removing these export restrictions, the WTO is currently an organization in disarray that lacks the legal tools and the political will to effectively address this global crisis. Unlike the WTO, many free trade agreements (FTAs) such as the United States-Mexico- Canada Trade Agreement and the Treaty on the Functioning of the European Union (EU), contain effective legal tools to curb export restrictions on food. At the moment, FTAs are proliferating all over the world and have now displaced the WTO as the most effective means for eliminating or overcoming export restrictions on food. It is now up to the EU and the United States, the principals of the world\u27s most robust FTAs, to take the lead in demonstrating how FTAs can be used to effectively to combat a catastrophic food emergency. This Article proposes an innovative solution through the use of FTAs by the United States and the EU to create a free trade conduit for food exports to meet demand in world markets without a spike in prices in a time of crisis
The Identifiability Problem in Transnational Privacy Regulation
Get PDFCommercial surveillance pervasively compromises data privacy by tracking consumers without meaningful consent or knowledge, yet there is no consensus on when data privacy laws should intervene. The crux lies in the standard of identifiability, which functions as the threshold trigger for when regulation is permissible. Ascertaining the identifiability of information is therefore critical to consumers, companies, and regulators, who must understand, comply with, and implement data privacy laws. As this Article shows, the world\u27s key privacy jurisdictions the European Union, United States, and China-continue to struggle in similar ways with inadequately defining and inconsistently applying the concept of identifiability. This Article generalizes from the transnational convergence and refers to it as the identifiability problem. Recognizing the identifiability problem reveals an overlooked phenomenon across jurisdictions. Besides, it lays a factual foundation for synthesizing international efforts into solving the threshold issue of data privacy law. Moreover, it calls forth a normative inquiry. Whether we can justify the use of identifiability as the threshold for regulation is the first and foremost task prior to revising identifiability or abandoning it
Competition Upstream of Amazon
Get PDFThe rise of large, market-concentrating technology firms like Amazon, Inc. is driving commentators, regulators, and politicians to rethink the law of antitrust. In particular, “New Antitrust” reformers propose that the narrow focus on consumer welfare has caused antitrust law to stop too short in corralling the broader social and economic consequences of Big Tech’s “bigness.” Proponents of the consumer welfare standard argue that it has worked well to distinguish beneficial competition from harmful aggression and, further, to reduce costly legal uncertainty. There is now momentum for substantial reform to antitrust law and practice and a growing debate about what such reform might include.
This Article contributes to the debate by presenting a modest case study of a market that is evolving on Amazon, Inc.’s Marketplace platform: the market for nonprescription components of continuous positive air pressure (CPAP) machines, medical devices prescribed to patients suffering from sleep apnea. The study reveals two observations. First, the underlying economic and doctrinal logic of consumer welfare antitrust remains sound. Second, the study illustrates positive social consequences beyond just the economic wealth and welfare that the consumer welfare standard uses as its lodestar.
This Article focuses on that proponents of the consumer welfare approach are wrong to dismiss indirect negative social and economic consequences of bigness, such as harm to small business, stifling of innovation, and inequality. This Article follows the New Antitrust reformers into this space by illustrating counterbalancing social and economic consequences from Amazon’s consolidation, including a thriving network of small and innovative dealers, other small innovators that serve them, increased employment opportunities, and even lowering of healthcare costs. Amazon has grown large and has concentrated online retail and related logistics, but its largeness has spurred innovation, competition, and social value-creation just upstream
The Rise and Fall of the Horseracing Integrity and Safety Act: How Congress Could Save the “Sport of Kings”
Get PDFThe Horseracing Integrity and Safety Act (HISA) has undergone several unsuccessful changes over the past decade in an effort to change how horseracing is regulated. After Congress successfully passed HISA in 2020, several lawsuits were filed to stop HISA from going into effect. Congress quickly passed an amendment to HISA—which the US Court of Appeals for the Sixth Circuit upheld—seemingly stopping such litigation, but it is clear from opponents’ statements that this is just the beginning. This Note will examine the constitutional arguments’ strengths and weaknesses through precedent to determine whether the long-awaited act, as amended, can stand the test of time—and its many legal challenges. First, this Note will provide a brief overview of the lead-up to HISA, its many iterations, and its current structure. Next, it will discuss the various constitutional problems with the Act and the viewpoints articulated. Then, it will analyze which of these provisions are truly susceptible to challenge and why, as analyzed through US Supreme Court precedent, and the effects on possible future litigation. This Note will also look at the possible problem of the independent regulatory structure. Lastly, it will conclude with the overall risks and whether the act crossed the line
Play on? An Evaluation of FIFA\u27s Legal Regime and Its Foundation in Alternative Dispute Resolution
Get PDFFew associate the Federation Internationale de Football Association, or FIFA, with its legal regime. Rather, and understandably so, sports fans and commentators tend to focus on World Cups, corruption, or even the FIFA video game. Yet, FIFA\u27s role in the sport of soccer extends well beyond what receives the most commercial attention. FIFA shoulders the burden of regulating soccer\u27s member associations, national teams, clubs, players, and countless other personnel through its FIFA Statutes. This is a considerable undertaking, which FIFA achieves through its comprehensive system of alternative dispute resolution.
Soccer is now a global business, largely due to the economic might of the transfer market. This marketplace is the forum where clubs swap players and money in sometimes-complicated transnational business transactions. FIFA\u27s internal institutions and the Court of Arbitration for Sport serve to resolve legal disputes resulting from dealings in the transfer market. FIFA\u27s legal regime mostly functions as intended, though it is also subject to criticism as it supplants domestic court systems and their jurisdiction over potential contract and labor law disputes.
This Note maintains that FIFA\u27s legal regime should continue to exist in its current structure, but also argues that moderate reforms would improve the efficacy and legitimacy of its institutions and relationship with the Court of Arbitration for Sport. More specifically, this Note proposes the adoption of a Players\u27Bill of Rights and two amendments to the FIFA Statutes concerning arbitration. Not only would such reforms strengthen the stature of FIFA\u27s legal regime, but they would also better inform soccer-related actors of their rights and obligations under FIFA\u27s governance. While FIFA rightly prides itself on the success of its legal regime, there is room to improve. This Note\u27s proposals do not constitute an overhaul, but rather an acknowledgement that FIFA must continue to adapt as soccer flourishes in terms of popularity and wealth
Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond
Get PDFIn its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an element that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet to confront the effect of the Court\u27s Apprendi rulings on the regulation of conditional release in the states. This Article takes on that project.
The Article makes three contributions. First, it explains why and how the Apprendi doctrine applies to judicial findings at initial sentencing that either lengthen the term of conditional release an offender must serve or mandate incarceration instead of conditional release. State courts continue to divide on these questions.
Second, regarding factfinding at the revocation stage, the Article tackles the many questions left open by the Court\u27s only effort to consider Apprendi in the revocation context-United States v. Haymond. The Article defends two due process analyses, derived from past precedent and Justice Breyer\u27s controlling concurrence in Haymond, that are better suited than the Apprendi doctrine to protect against legislative overreach in the revocation context. Scholarship discussing Haymond has barely mentioned Justice Breyer\u27s analysis. This Article gives his controlling concurrence the attention it deserves. Combined, these due process analyses provide a sound middle ground between the rigid application of Apprendi\u27s rules to conditional release and the limitless use of revocation to punish new criminal conduct.
Third, the Article applies these analyses to state statutes governing the imposition and revocation of probation and post-confinement supervision. This long-overdue state-centered focus provides needed guidance for policymakers designing conditional release policies that reserve more punitive sentences for more egregious cases
The End Externalities Manifesto: Restatement, Loose Ends, and Unfinished Business
Get PDFDon Elliott and Dan Esty were among the chief architects of Environmental Law 2.0-the shift that infused so-called command-and- control regulatory regimes with market-based tools in search of cost- effective solutions. The mix of incentives, trading, banking, reporting, bubbles, and other techniques revolutionized the way we think about how to attack environmental problems like pollution and habitat loss.
In their End Environmental Externalities Manifesto ( Manifesto ) they are at it again. This time, however, their proposed revolution goes in a different direction. They argue that the guiding light of economic efficiency, which took environmental law far in improving environmental conditions, is not up to the task of finishing the job. In their view, the efficiency quest took a wrong turn in the 1980s, when benefit-cost analysis using the Kaldor-Hicks net social benefit standard became a dominant decision-making tool for pollution regulation. The result was that we became comfortable with what could be called efficient pollution-we allow emissions if the cost of reducing them exceeds the value of the social benefits reducing them would produce. But those residual emissions aren\u27t harmless. They are negative environmental externalities that injure people and degrade ecosystems.
The central thesis of Manifesto is that finishing the job of environmental law means ending these environmental externalities, and that an efficiency-based approach based on net social benefits won\u27t get us there. Rather, to end all externalities will requiring incorporating an environmental rights model aimed at providing compensation to those harmed by residual emissions. Manifesto argues that this would fulfill the polluter pays principle, an idea touted as a bedrock of American environmental law, but which is often suspended under net social benefits analysis.
My hunch is that there will be objections to Manifesto\u27s critique of benefit-cost analysis as it has played out in environmental law. For one thing, taking environmental law broadly, strict adherence to benefit-cost analysis does not play a large role outside of pollution control regulation. Nor does Manifesto abandon benefit-cost analysis by any means. Elliott and Esty acknowledge its value for measuring economic efficiency and in guiding some regulatory decisions. But maximizing economic efficiency, they argue, is not the right way to frame environmental law for ending all externalities, if that is our social goal