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A Major Answer to the Major Questions Doctrine
Get PDFThe Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder
The Data Trust Solution to Data Sharing Problems
Get PDFA small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the United Kingdom, European Union, and Canada, this is the first Article to take an in-depth look at the viability of data trusts from a US perspective. A data trust is a governance device that places an independent fiduciary intermediary between Big Tech and human data subjects. This Article explores how data trusts might be configured as bundles of contracts in the information supply chain. In addition to their benefits for the social good, data trusts might contribute to relieve some of the tension between EU and US privacy practices
The Mob Lawyer\u27s Constitution
Get PDFThis article reconstructs the constitutional rhetoric of mob lawyers, as well as drug lawyers and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s-the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them. Drawing upon pop-culture sources including archival television footage, magazine features, newspaper coverage, and ghost-written mass-market memoirs, the article pieces together the constellation of soundbites through which mob lawyers disseminated their views. As the subjects of frequent media coverage, these lawyers advanced a coherent and distinctive (if crude) set of ideas about the proper relationship between individuals, the state, law, and wealth.
In investigating constitutional history, legal scholars often focus on elite legal actors and Supreme Court doctrine, or, if they examine popular constitutionalism, on organized litigation campaigns, rather than the more diffuse world of solo practitioners and small law firms. Bringing together legal and cultural history, this article contributes a new angle on these themes-looking for insights into Reagan-era constitutional culture not in the Department ofJustice or the Supreme Court, but at Manhattan steakhouses and Miami nightclubs
Administrative Regulation of Programmatic Policing: Why Leaders of a Beautiful Struggle is Both Right and Wrong
Get PDFIn Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore\u27s aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people\u27s information, an individual-specific warrant requirement can never be met by such a program. When police engage in suspicionless searches and seizures of the type exemplified by AIR, a different regulatoy approach is needed, one that provides the protection against arbitrariness that the warrant process affords but does not require findings that specific people have violated the law. This Article argues that this regulatory alternative can be derived from administrative law principles. The logic of administrative law dictates that legislatures and agency rulemaking must be involved any time a policing agency wants to establish a program that will intentionally affect sizeable numbers of concededly innocent people. If administrative law principles applied, programs like AIR would not be permitted unless a legislature has delegated appropriate authority to the relevant police agency, implemented regulations have survived notice-and-comment and hard look judicial review, and the agency carried out the program in an even-handed fashion that minimizes discretion. At the same time, contrary to the holding in Leaders of a Beautiful Stuggle, if these requirements are met, the Fourth Amendment at least the part of it requiring warrants and probable cause-would be irrelevant
Quasi-Experimental Evidence on the Impact of State Recycling and Deposit Laws: Household Recycling Following Interstate Moves
Get PDFThis article estimates the effects on recycling behavior of state recycling laws and deposit laws based on changes in household recycling before and after interstate moves. Estimates from a national panel dataset of 1,498 households who moved between states provide a quasi-experimental test otherwise not possible given long-term stability of such laws in any state. Compared to national average recycling rates, moves to states with deposits for beverage containers increased the number of material types recycled by 41%. More stringent recycling laws are also effective, but they have a smaller impact. Recycling laws boosted the number of materials recycled by 9%, with the largest effect being the 17% increase in the recycling rate for glass. Moves from states with deposit laws to states without such laws decreased the number of materials recycled by 13%. Shifts out of states with stringent laws only had statistically significant effects for plastic, which exhibited a 12% decrease after such a move
Artificial Intelligence and Interspecific Law
Get PDFSeveral experts have warned about artificial intelligence (AI) exceeding human capabilities, a “singularity” at which it might evolve beyond human control. Whether this will ever happen is a matter of conjecture. A legal singularity is afoot, however: For the first time, nonhuman entities that are not directed by humans may enter the legal system as a new “species” of legal subjects. This possibility of an “interspecific” legal system provides an opportunity to consider how AI might be built and governed. We argue that the legal system may be more ready for AI agents than many believe. Rather than attempt to ban development of powerful AI, wrapping of AI in legal form could reduce undesired AI behavior by defining targets for legal action and by providing a research agenda to improve AI governance, by embedding law into AI agents, and by training AI compliance agents
“CHALKING UP A VICTORY FOR DEAL CERTAINTY”: CHANCERY COURT REINFORCES HIGH BAR TO ESTABLISHING “MAE” IN CONNECTION WITH IMPACT OF COVID-19
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China\u27s National Security Review of Foreign Investment: A Comparison with the United States
Get PDFThis paper critically examines China\u27s national security review regime of foreign investment and compares it with that of the United States. Over the years, China has gradually established a comprehensive legal framework for national security review of foreign investment. Recent efforts were made to refine the public enforcement mechanism of the review in tandem with a new pre-establishment national treatment plus negative list system under the 2020 Foreign Investment Law. The United States also enacted the Foreign Investment Risk Review Modernization Act of 2018 to enhance its national security review regime. By analyzing the law and practices of China and the United States, this paper finds that the national security review regimes of the two jurisdictions have functional convergences despite some formal divergences caused by diverse political-economy landscapes. Their functional convergences are highlighted by China\u27s local practices, such as the de-facto national security screening in the name of anti-monopoly review. There are many factors affecting China\u27s national security review regime for foreign investment, including the ongoing (and escalating) US-China competition (or conflict) at the international level and the evolution of state or party capitalism at the domestic level. These research findings will not only contribute to the existing comparative law scholarship but also benefit multinational enterprises that seek to enter Chinese and the US markets
Plea Bargaining\u27s Uncertainty Problem
No full textWhile commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself Critics\u27 primary target is the trial penalty. But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of progressive prosecutors is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source. Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining. It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved. Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key. And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant\u27s choice into something resembling a bet at a Las Vegas casino- a solemn spectacle of plea-bargaining roulette. Identifying uncertainty as plea bargaining\u27s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process this country\u27s dominant mechanism for resolving criminal cases. Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective