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The Rule of Law under Challenge: The Enmeshment of National and International Trends
Get PDFThe goal of the rule of law is to protect individuals from the arbitrary exercise of power. Democracy and human rights depend on the rule of law. But today the rule of law is under growing threat in the United States and around the world. Trends regarding rule-of-law protections are transnational in scope. They involve shifting norms, institutions, and practices at the local, national, and international levels. This paper assesses how challenges are taking place at the international and national levels, and how these challenges are linked. It examines the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power also is exercised beyond the state in an interconnected world. Sustaining the rule of law is a never-ending struggle, one that current challenges make particularly daunting
Executive Branch Control of Federal Grants: Policy, Pork, and Punishment
Get PDFHigh-profile controversies in each of the last several administrations have involved the extent of Executive Branch control over federal grants. These challenges were particularly pronounced during the Trump Administration, when it seemed that each month brought a new grant-related controversy, from the opening week’s attempts to withhold funding from sanctuary cities to the last months’ effort to deny funding to “anarchist” jurisdictions. The aftermath of the Trump Administration thus provides an important opportunity to assess the bounds of Executive Branch control over federal grants writ large. In doing so, this Article makes three contributions. First, as a descriptive matter, it maps the terrain of Executive Branch control over federal grants, illustrating how this control operates at three distinct moments in the grant lifecycle: the policy stage, the award stage, and the enforcement stage. Second, as a normative matter, the Article argues that for the most part, robust Executive Branch control over federal grants in all three of these arenas is good, against a current trend seeking to reduce Executive Branch control to transmission-belt status. At the same time, the award stage includes dangerous opportunities to transform neutral awards into partisan pork, while the enforcement stage includes dangerous opportunities to transform neutral enforcement into political retribution. Third, through a thick case study of the Trump Administration’s engagement with federal grants, the Article demonstrates what happens when a boundary-pushing President is confronted with the core framework for Executive Branch control of federal grants. The case study reveals that courts and norms do a good job of cabining abuses in the policy arena, but that courts, norms, and politics struggle with cabining abuses in the arenas of pork and punishment. The outsize attention paid to the Trump Administration’s efforts to withhold funding from sanctuary cities and anarchist jurisdictions thus misses the most dangerous opportunities for Executive Branch abuse of federal grants. These opportunities can and should be limited through reforms to grant law in OMB and Congress rather than through doctrinal changes
Judges for Sale: The Effect of Campaign Contributions on State Criminal Courts
Get PDFDo campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.
We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties.
Defendants assigned to donor attorneys also fare worse in cases resolved in the month of contribution, with fewer cases dismissed and more defendants convicted and incarcerated. Further evidence suggests recipient judges close cases to cash out their attorney benefactors, at the expense of defendants. Our results provide some of the strongest causal evidence to date on the corrosive potential of campaign donations, including their impact on the right to counsel as guaranteed by the U.S. Constitution
Ordinary Meaning and Ordinary People
Get PDFThis Article considers the relationship between ordinary meaning and ordinary people in legal interpretation. Many jurists give interpretive weight to the law\u27s ordinary meaning (i.e., general, nontechnical meaning). Modern textualists adopt a strong commitment to ordinary meaning and justify it by alluding to ordinary people: people understand law to communicate ordinary meanings. This Article begins from this textualist premise and empirically examines the meaning that legal texts communicate to the public. Five original empirical studies reveal that ordinary people consider genre carefully, and regularly take phrases in law to communicate technical legal meanings, not only ordinary ones. Building on the insights from these empirical studies, this Article argues that interpreters who claim fidelity to ordinary people\u27s understanding of law should regularly look beyond “ordinary meaning.
Resetting the Rules on Trade and Gender? A Comparative Assessment of Gender Approaches in Regional Trade Agreements in the Context of a Possible Gender Protocol Under the African Continental Free Trade Area
Get PDFAt long last, gender and trade are together on the international agenda, with significant implications for women entrepreneurs and traders around the world. Alongside the landmark 2017 Joint Declaration on Trade and Women’s Empowerment, regional trade agreements (RTAs) have taken the lead on more tangible gender commitments. One such RTA is the African Continental Free Trade Area (AfCFTA), in which gender appears as an express priority alongside sustainable and inclusive socio-economic development. Yet, this is only a starting point. A gender-focused protocol has been proposed under the AfCFTA framework, representing a significant opportunity to reassess RTA provisions on gender and consider more tailored approaches that could benefit women on the African continent and around the world.
This chapter will present a comparative assessment of approaches for evaluating and categorizing gender and trade approaches in RTAs. These include focus on gender responsiveness and incorporation of international and domestic legal design innovations and options for “inclusive law and regulation” (with particular examples from African regional and domestic law) in order to use RTAs to address concrete challenges facing women. In particular, the chapter focuses on how RTA rules could more actively support women’s work, reduce procedural hurdles facing women in the market, enhance access to finance and digital inclusion, and promote food security. The chapter shines light on how gender provisions could be shaped, reframed, and better implemented in practice, with implications for the AfCFTA and future RTAs beyond Africa as well
Judicial Trends in the Era of Covid-19: Public Health in Peril
No full textA pandemic can test and reshape health systems like no other event. The same can be said for the profound impacts of pandemics on public health law and governance. January 2023 marks the third anniversary of COVID-19. As the pandemic wrought devastation on health and the economy, public health officials exercised unprecedented powers, ranging from orders to mask, test, and vaccinate through to social distancing, school and business closures, and stay-at-home orders. These powers unleashed an avalanche of legal challenges to curb emergency health powers and agencies’ ability to safeguard the public’s health and safety. The courts have placed public health in peril
Merger Enforcement Statistics: 2001-2020
Get PDFThis article summarizes merger enforcement data for the period between 2001 and 2020, using a database created by the authors. The database lists the identity and outcome of every transaction that received a second request during this 20-year period. The database also lists the identity and outcome of every challenge to an already-consummated merger during the period. To our knowledge, it is the only complete database for the listing and outcomes of all such transactions. The goal of creating the database is to provide further information on merger enforcement, which hopefully can inform policy and spur additional analysis. We describe the data and various results, both in aggregate and across Presidential Administrations. These include rates of second request, challenges, consent decrees, abandonments and trial outcomes. We also provide a complete listing of all merger challenges
Some Thoughts on Reply Briefs
Get PDFThis essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.The essay then turns to the more difficult challenges of crafting the brief, making three key points:First, don\u27t just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent\u27s terms. Rather, re-frame the case on your client\u27s terms, taking the case back from the appellee and weaving your responses to the appellee\u27s argument into your basic thesis statement(s).Second, don\u27t respond to everything your opponent says that you view as incorrect, misleading, or annoying; rather, be the adult in the room, and respond only to things that matter. Judges and law clerks will appreciate this measured, mature, and economical approach.Third, bear in mind the relationship between the opening brief and the reply brief. When writing your opening brief, anticipate the appellee\u27s arguments and think hard about whether your opening brief should serve as a reply on some key points. If the opening brief does this fairly, you can gain the court\u27s trust as a straight shooter, while preempting the impact of the appellee\u27s arguments by outing them in the first place. Then, when it\u27s time to write the reply brief, you can call back your earlier brief and reply economically on the points you\u27ve already discussed
Unmet Legal Needs as Health Injustice
Get PDFIn a seminal report in 2006, the American Bar Association recognized that millions of low-income Americans have civil legal issues that go unaddressed, jeopardizing their fundamental and basic human needs for shelter, sustenance, safety, family stability, and access to health care. The pandemic has only exacerbated this crisis. When rights in these areas go unenforced for Americans marginalized by poverty and race, their health can suffer, compounding health inequities. The fundamental civil legal needs of low-income Americans must be addressed in order to ensure health equity. This Article argues that unmet fundamental legal needs serve as determinants of health and health equity, and envisions a role for lawyers in addressing health injustice through a “clients-to-policy” approach.
In Part I, this Article examines the health justice framework through which laws are understood as determinants of health equity. In Part II, this Article argues that when unaddressed for low-income individuals, legal needs serve as social determinants of health. Applying the health justice framework, the Article examines the major domains of social determinants of health (“SDOH”) and identifies areas of law for which unmet legal needs contribute to poor health and health inequity. Specifically, it analyzes how the five major domains of SDOH of the Healthy People 2030 paradigm of the U.S. Department of Health and Human Services (“HHS”) implicate legal issues in the fundamental area of human need identified as critical for access to counsel by the ABA. This Part explores the exacerbation and urgency of these challenges created by the pandemic and examines racial inequities driven by structural racism that create a compounding burden of health disparities for people who are both low-income and people of color. In line with the health justice framework’s exploration of how law can be leveraged to mitigate inequities, Part II concludes by examining how legal representation can address fundamental legal needs that affect health, providing support for access to counsel in these areas.
Finally, in Part III, this Article engages with potential critiques of an emphasis on individual legal representation as a downstream and overly individualistic approach to health justice. This Part addresses these critiques and argues that individual legal representation to enforce extant laws is required for health justice to address the immediate, health-harming legal issues affecting individuals from marginalized communities and improve their health and well-being. However, even though such individual legal advocacy is necessary, it is insufficient. Instead, legal representation should be used as a platform for advocacy in pursuit of structural change through law, policy, and systems reform. This Article proposes a multitiered, integrated clients-to-policy approach for lawyers to facilitate health justice to improve the health of individuals and pursue structural reform to address health equity up- stream
In re The Walt Disney Co. Derivative Litigation Rewritten
Get PDFIn re The Walt Disney Co. Derivative Litigation is notable for upholding the broad latitude courts afford to boards through the business judgment rule. The case addressed a $130 million termination package delivered to former Disney CEO, Michael Ovitz, after fourteen months of underperformance at the company. This rewritten opinion, to be published in “Feminist Judgements: Rewritten Corporate Law,” (Kelli Alces Williams, Anne Choike, & Usha R. Rodrigues, eds.) (Cambridge Univ. Press, forthcoming 2022), follows the style of the Delaware Supreme Court and reaches the same outcome with a different approach. The opinion expounds on the corporate governance practices in use by Disney’s board, explaining how a lack of diversity, inclusion, and creative friction led to bad business decision making. Michael Eisner, serving as Disney’s CEO, failed to engage with all of the board members, let alone all members of the compensation committee, instead leaning on just a few. His strategy stifled thought and discussion among directors, preventing the innovation that can accompany diversity when it is combined with inclusion. Nevertheless, this opinion affirms the Delaware Supreme Court’s 2006 decision because the choices, even if disappointing, did not amount to a violation of fiduciary duties under Delaware law.
In the spirit of the Delaware Supreme Court, however, the opinion also provides best practices and suggestions to foster the engagement and communication requisite to a healthy board and strong corporate governance. The opinion looks to research existing at the time of the original decision, including studies on how even if diversity creates some tension, that tension may well be what leads to innovation, and better business results. Of course, inclusion is what makes diversity sticky and allows diverse teams to unlock their potential—and what was missing on the Disney board. Ultimately, a more inclusive decision-making process, executed by a diverse group of decision-makers, has the potential to provide the informed discussion, questioning, and debate necessary to avoid groupthink, improve business results, and enhance board judgment