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Two Forms of Formalism in Contract Law
Full text linkFormalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This article addresses that need by providing general theory of contract exposition and differentiating between two salient forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is”, the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. The article provides a detailed analysis of each form of formalism, identifies when they are and are not likely to advance the goals of contract law, and discusses the optimal design of each type
\u3ci\u3eBrown\u3c/i\u3e Now: The Surprising Possibility of Progressive Reform
Full text linkFor four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously -- a big if, I concede-- it has the potential to support some progressive goals.
In particular, modern doctrine might provide progressives answers to three questions: Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional? Are legacy admissions to state run institutions of higher education constitutionally vulnerable? Is discrimination based on sexual orientation subject to heightened scrutiny
Mind the Gap(s): Mitigating Harassment in a Post #MeToo Workplace
Full text linkIn a post #MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers, particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over 3,000 bills, which allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. We assess comprehensiveness by examining how responsive legislation is to existing gaps in legal protection during the five years following the 2017 tweet that took #MeToo activism global, relative to the 2016 baseline period. We found that states introduced a wide breadth of reforms to combat harassment and gender inequality, including some changes that address longstanding gaps in legal protection. Gaps persist, however, and in some cases worsened post #MeToo. Going forward, reform efforts by state legislatures – and all legal stakeholders – will prove most effective if they move away from narrow conceptions of sexual harassment and follow the voice of workers, pursuing a broad, multi-layered agenda around gender equity that is responsive to the realities of our evolving workplace and society
Felony Disenfranchisement and Voter Turnout: Randomized Trials in Iowa and Washington
Full text linkPrior to the 2022 midterm elections, we conducted large-scale randomized controlled trials in Iowa and Washington aimed at increasing voter turnout among newly enfranchised individuals with past felony convictions. Alongside national and grassroots partners, we designed and implemented experiments to ascertain the effectiveness of alternative outreach mechanisms, including targeted mailers and digital ads. We did not detect statistically significant or economically meaningful effects on voter registration or turnout; most observed effects were precise nulls. The absence of measured impact is likely attributed to low digital engagement with our online ads as well as extensive voter outreach already conducted by our local partners prior to the study. Our evidence highlights the importance of context in voter outreach efforts, as the political and legal environment in Iowa and Washington differed significantly from other regions where similar interventions had previously shown success
Feminist Use
Full text linkIn 2015, Judge Pierre Leval wrote that copyright isn’t about authors, it’s about the rest of us. “While authors are undoubtedly important intended beneficiaries of copyright,” he explained, “the primary intended beneficiary is the public.” He would know—his scholarship has been transformative for how every jurist from the Supreme Court down approaches key copyright questions. But copyright often falls short of this aspiration by benefiting only a sliver of the public.
Copyright law grants exclusive rights to authors of qualifying works, such as books, which protects those works from unauthorized copying. The first copyright legislation, the Statute of Anne of 1710, was drafted and enacted by a British Parliament comprised of privileged white men, largely for the benefit of other privileged white men, to encode men’s vision for the intersection of creativity and capitalism. The Copyright Act of 1976, which continues to govern much of copyright law in the United States, was enacted by a Congress comprised of predominantly white men, and it eliminated formalities for copyright registration and extended copyright terms. Those changes make it more challenging for the public to access, read, and remix copyrighted works. Consistently, copyright laws have focused on the creativity of other men, evidenced by their exclusion of arts stereotyped as “women’s work
Micro International Law
Full text linkInternational law has long been viewed as the domain of countries and capitals, not fields or factories, but this overly top-down perspective misses a critical and under-studied dimension. Underneath the macro level of international agreements and standardized legal approaches and norms, international law is much more nuanced, with multiple sources of influence, production, design, adoption, and decision-making, which need to be more systemically recognized and compared in both scholarship and practice. Models stemming from legal systems in less powerful states, smaller-scale stakeholder interests, and local solutions are often treated as one-off anecdotes or isolated case studies without broader implications. Cataloging these lessons, aggregating them, and building a methodology around them could be transformational at a time when international law is both under siege and in need of a refresh to make it more responsive to a new set of global challenges ranging from inequality to food insecurity and climate change. This paper presents a new approach for studying, designing, and implementing international law in the form of a conceptual and methodological framework for “micro international law,” a proposed sub-field of international legal studies. A micro dimension would align international law with other disciplines that recognize the importance of studying issues at a more granular level. It would also make a significant contribution to the international legal field by integrating theoretical and empirical approaches that focus on the circular relationship between international law and smaller-scale domestic legal innovations and stakeholder interests, ultimately providing a framework for redesigning international law to positively impact the lives of those whom it aims to serve and benefit
Formulating Public Pharma
Full text linkIn 2022, prices for both brand-name and generic drugs in the U.S. were nearly three times as high as prices in comparably industrialized nations, with the cost of insulin products in particular being nearly ten times as high. As a result, 3 out of 10 American adults cannot afford to take their medication as prescribed. Furthermore, in 2024 the U.S. experienced its worst drug shortage in over a decade, with more than 300 drugs in short supply. Generic drugs are particularly vulnerable to shortage, as manufacturers have poor economic incentives to produce drugs with slim profit margins. While the Biden administration has signaled its interest in addressing drug pricing, the federal government has not responded to this crisis effectively with its efforts to regulate the private pharmaceutical industry. For instance, the National Institutes of Health (NIH) refuses to exercise march-in rights for federally funded inventions under the Bayh-Dole Act. More recent efforts to negotiate drug prices under the Inflation Reduction Act (IRA) are limited in scope and have been subjected to a number of constitutional challenges by the pharmaceutical industry. Meanwhile, several states, including Illinois, Maryland, New York, and Minnesota, have tried to address this crisis with laws prohibiting generic drug price gouging. Several of these laws have been struck down as unconstitutional, while others are still being litigated. States need another way to ensure that their citizens have access to medicine, and public pharma paves an unexpected path forward.
Public pharma is the development, manufacture, and distribution of drugs and biologic products by the public sector, rather than by private entities. This Article posits that public pharma is one solution to mitigate the troubles previously outlined: drug shortages and drug prices. Through state-owned pharma, states can take control of unrestrained drug pricing, as well as protect against drug shortages by investing in domestic production. Some state entities are already manufacturing or planning to manufacture generic drugs and vaccines, including California’s CalRx and Massachusetts’ MassBiologics. However, state liability for patent infringement will be a major legal challenge to state-owned pharmaceutical institutions. To overcome these challenges, this Article considers lessons learned from sovereign immunity doctrine and proposes tools for states to provide reasonable compensation to patent owners. States succeeding in experimenting with public pharma will ultimately serve as an important stepping stone for the establishment of a federal public pharmaceutical sector to ensure uniform access to medicine across the nation
Violence in the Administrative State
Full text linkDrawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law. Approximately one-fifth of federal employees work for administrative agencies that police, fight wars, enforce immigration law, or incarcerate people—in other words, agencies that use force to execute the laws. These agencies are saturated with administrative law that obligates front-line administrators to confer due process, give notice, behave non-arbitrarily, and comply with law. Yet this law often fails to constrain administrators, with unauthorized violence as the result.
Conventional administrative law fails in these agencies because it has developed out of a model of the administrative state to which they do not conform. Most administrative law is designed around the organizational form and norms of bureaucracy. The characteristic role of bureaucracy is rational information processing using standardized rules and procedures. But the lower levels of these agencies belong to the domain of violence. They empower administrators to use physical violence in response to exigent circumstances––a different role, carried out within a different organizational form that has different norms and decision-making techniques. Ordinarily designed to safeguard core rule-of-law values, when bureaucratic administrative law is applied to agencies in the domain of violence, it often masks, and at worst accelerates, unauthorized violence.
For administrative law to potentially address unauthorized violence, it would have to override individuals’ responses and alter agency culture, requiring it to take different forms than bureaucratic administrative law usually does. Recognizing the domain of violence has practical and conceptual payoffs. It can help us understand how and whether law can check violence in the administrative state. And it opens up a universe of questions about the exceptional legal norms applied to agencies in this domain
Deny, Defund, and Divert: The Law and American Miseducation
Full text linkRacial inequality in public education is not inevitable, it is constructed. The law has been elemental in crafting racial inequality in public education. In this Article, I posit that lawmakers seeking to entrench racial inequality in and through public education do so by enacting laws designed to deny Black children access to education, defund public schools disproportionately attended by Black children, and divert many Black educators away from the public education system. This Article draws a through-line between laws enacted to prevent desegregation in the aftermath of the Brown v. Board of Education ruling—an era known as massive resistance—and recently introduced laws that seek to exclude the nation’s history of racial inequality and its enduring effects from curriculum. While contemporary laws are cloaked in colorblind language that makes them appear racially neutral, at bottom, they are predicated on the same anti-Black sentiment and white supremacy of Slave Codes, Black Codes, and Jim Crow laws. This Article builds upon the critical race theory concept of race, reform, and retrenchment by asserting that education retrenchment laws enacted following periods of racial progress can be characterized by the deny, defund, and divert framework. This framework helps us to understand how lawmakers impose racial inequality in and through education, and it can also inform strategies to thwart such laws. Racial inequality in education is not intractable. Deny, defund, and divert laws can be thwarted by race-conscious laws that seek to promote culturally inclusive education, to strategically fund under-resourced schools, and to rebuild the pipeline of Black educators. Racial inequality cannot be cured solely through reliance on formal equality; instead, laws entrenching racial inequality and white supremacy must be affirmatively dismantled
Measures of Justice: Researching and Evaluating Lay Legal Assistance Programs
Full text linkIn recent years a national movement to train lay advocates and advisors to assist people with their common justice problems has emerged in the United States. A host of new programs have launched that allow trained navigators and justice workers to provide legal assistance. These programs – developed in Alaska, Delaware, South Carolina, Arizona, and Utah, among other places – vary in their substantive focus, the skills they impart, and their approaches to reaching the people and communities they seek to help. The proliferation of lay legal assistance programs creates research imperatives and opportunities. These programs need to be assessed to determine whether they risk harm to users, improve access to justice, and are equivalent (or better) alternatives to relying on lawyers. While the legal profession rarely attempts to assess the value of lawyers’ services, evaluation is a core element in social and health services. Drawing on assessment in other service areas, we offer a preliminary framework for evaluating lay assistance programs that focuses on fidelity and harm avoidance, effectiveness for individual users, and social impact. We highlight the importance of adopting a people-centered perspective on the value of interventions intended to help people achieve just resolutions of their problems. We offer this framework as a first step in the development of shared rubrics for assessing lay legal assistance. Over time, our hope is that a greater emphasis on assessment will prompt the legal profession to adopt evidence-based approaches to determining the value of legal services