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The Walking Debt: How Zombie PACs Threaten Federal Elections and Proposals For Reform
Full text linkZombie political action committees are political entities that are legally alive but whose candidate the committee is attached to has either died or functionally retired from politics. These committees form as a byproduct of skewed incentives in campaign finance law. The Federal Election Commission (“FEC”) is tasked with enforcing campaign finance laws and terminating political committees. However, it is structurally ineffective at enforcing those laws. Congress, meanwhile, has defunded the FEC and is poorly incentivized to improve its efficacy, as any Congressperson may one day benefit from having a zombie committee. When zombies do form, they are almost impossible to terminate. Their haunting presence undermines the foundation of campaign finance regulations, which is to uphold electoral transparency and reduce corruption.
This Comment will explore: (1) the ineffectiveness of the FEC’s current approach to adjudicating committee debts; (2) how the FEC’s debt resolution process leads to the formation of zombies and how zombies operate in the larger context of campaign finance regulation; (3) the threats that zombies pose to elections; and (4) the benefits of congressional amendments to the Bankruptcy Code allowing zombies to enjoy chapter 7 and chapter 11 protections
Super-Groups: Legal Empowerment and “Public Law”
Full text linkNot all interest groups are created equal. Some groups are created by or with the help of law. Law can confer political power on groups through wealth, rents, concentrated interest, and durability, creating synthetic factions that use their state-given influence to dominate lawmaking. Deregulatory and progressive traditions in public law have long thought differently about laws that empower. A deregulatory tradition sees legal empowerment as a democratic pathology that counsels against lawmaking, citing empowerment concerns as a perennial rhetorical point against consumer protection, environmental protection, and social welfare programs, among others, for fear they will lead to “capture.” At the same time, progressives dispute that such capture concerns are serious enough to counsel against otherwise-needed reforms, celebrate salutary uses of legal empowerment of marginalized groups as a counterweight to subordination, and ignore counterexamples of legal empowerment gone wrong.
Overlooked in this often-unsatisfying debate about how to think about laws that empower groups in public law has been the question how to think about groups that law empowers. This Article traces, problematizes, and begins to address that gap. It argues that legal scholars should differentiate ordinary interest groups from legally empowered super-groups and recognize super-groups as quasi-constitutional actors whose creation, composition, and behavior is an appropriate and indispensable site of democratic contestation and constitutional design.
Distinguishing super-groups carries important theoretical advantages. Doing so offers a richer understanding of democratic constitutionalism; inverts the conceptual relationship between substantive fields like criminal law or health law and “public law” fields like constitutional law; raises the possibility of creating super-groups as a more-inclusive and flexible substitute to constitutional rights for entrenching priorities against majority will; offers a deeper understanding of one driver of inequity in the “New Gilded Age”; and provides a framework for confronting prevailing power as a promising front for advancing political equality that patches a hole in Brandeisian antitrust. Finally, the Article shows through a case study of the American Medical Association’s capture of Medicare reimbursement policy that it is possible to develop actionable prescriptions by naming and problematizing super-groups
Technological Readiness Versus Disruption: A Framework for Assessing Distinct Artificial Intelligence Policy Strategies
Full text linkArtificial intelligence (“AI”) is here and rapidly advancing. As the 2024 Thrower Symposium of the Emory Law Journal demonstrated, developments in the integration of AI to all aspects of life raise fundamental challenges for legal scholars and policymakers about the desirability and legitimacy of algorithmic decision-making, the societal impact of automation, and the liability, ownership, and regulatory puzzles created by substituting human actions with AI systems. This Article provides a framework for analyzing the readiness and desirability of contemporary technological innovation while continuing to address the effects and impact of technological shifts on the labor market, social welfare, and democracy. Drawing from examples of AI deployment in healthcare, transportation, public administration, and employment, this Article shows that technological readiness, including its comparative effectiveness, cost, and safety, can and should be measured and assessed separately from reforms targeting the economic and political implications of AI deployment.
The Article delineates that, first, it is critical to adopt a comparative lens on AI versus human performance, asking whether the adoption of AI systems will nonetheless mitigate those risks and harms compared to current systems. Second, it is critical to distinguish between situations when AI is creating a new problem and when AI is simply reflecting existing societal problems back to us, when bias is detected in algorithmic recommendations. These comparative assessments are complex and nuanced; they must be answered across several axes, including consistency, efficiency, accuracy, scalability, accessibility, ability to detect and correct failure, traceability, explainability, and accountability. Because of this complexity, this Article suggests that a decontextualized attempt to regulate AI across sectors and applications is likely misguided. Moreover, such complexity requires a rich regulatory toolbox—including both command-and-control rules and public-private collaborative initiatives—drawing on the extensive literature and experience regarding effective governance. Third, separate from the assessment of the readiness of the technology for its intended purpose, policymakers must proactively evaluate and address the societal effects of the deployment of AI, including labor market disruptions, wealth distribution, consumer choices, and market competition. Thus, the Article introduces a two-step analysis of AI’s readiness and societal effects with research and data that is sector specific, establishing nuanced rational ongoing dialogue and policy.
The two-step analysis would begin with an assessment of an AI application from the perspective of accuracy, consistency, speed, safety, costs, non-bias, system failure detectability and correction, scalability and access, comparative to a human decision-maker or a nonautomated system. The second step moves to assessing the impact of the adoption of the new application on the labor market, market competition and concentration, and other socioeconomic and environmental effects
From Litigation to Arbitration: Empirical Insights into the DMCA Notice-and-Takedown System in Cross-Border E-Commerce Copyright Disputes
No full textIn cross-border disputes, the Digital Millennium Copyright Act (DMCA) notice-and-takedown system’s reliance on federal litigation as its final step faces serious procedural obstacles. An empirical analysis of twenty-four lawsuits filed in the Southern District of New York (SDNY) reveals non-appearing defendants, protracted proceedings, and Amazon’s occasional reinstatement of infringing products based on statutorily defective counter-notices. SDNY’s routine approval of email service on foreign defendants raises additional concerns about treaty violations and inconsistent application of legal standards. To address these inefficiencies, this Comment proposes a public, arbitration-like mechanism as an alternative to litigation. While private arbitration models—such as Amazon’s Patent Evaluation Express (APEX) program—are instructive, they lack feasibility due to corporate disincentives and policy constraints. Instead, a legislative framework modeled on the Copyright Claims Board (CCB) and the Uniform Domain-Name Dispute-Resolution Policy (UDRP) would ensure greater accessibility, consistency, and efficiency in the “last mile” of DMCA disputes
A Haven for Polluters: Examining CERCLA Successor Liability Under State Law
No full textThis Comment explores how businesses exploit variability in state corporate law to evade liability for hazardous waste pollution. In particular, it examines the tension between the successor liability doctrine and environmental accountability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While CERCLA purports to hold polluters responsible for site cleanup under a broad liability scheme, some states have effectively—through limiting statutes and rigid judicial interpretation—allowed businesses to retain control of environmental assets while casting off associated liabilities. This trend is particularly concerning because most jurisdictions apply state law, as opposed to a uniform federal rule, when considering successor liability under CERCLA. Further, evidence suggests that some businesses with toxic environmental assets are reincorporating to take advantage of favorable state law regimes. This Comment therefore contends that state corporate law does not sufficiently prevent polluting businesses from “dying paper deaths, only to rise phoenix-like from the ashes, transformed, but free of their former liabilities.” Rather, a unified federal framework is necessary to ensure corporate accountability and support CERCLA’s objective to protect human health and the environment
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1005/thumbnail.jp
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1002/thumbnail.jp
Fiscal Citizenship and Taxpayer Privacy
Full text linkShould individual tax data be public or confidential? Within the United States, secrecy has been the rule since the Tax Reform Act of 1976. But at three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made individual tax records open for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all mandate significant transparency for individual tax information.
This Essay intervenes in the tax-confidentiality debate by building a new analytical framework of fiscal citizenship. Until now, scholars have focused on compliance—whether disclosure incentivizes honest reporting of income, and if it does, whether compliance gains outweigh the intrusion into a generalized notion of taxpayer privacy. But the choice between confidentiality and transparency implicates more than compliance. It rests on the taxpayers’ dynamic interactions with the fiscal apparatus of a state that aspires to democracy and egalitarianism. This Essay posits that fiscal citizens play the roles of reporters, funders, stakeholders, and policymakers in the tax system. Within these roles, transparency and privacy have distinct valences. Further, the degree to which any taxpayer partakes in each role depends on both their own income and the income inequality within the community structured by federal taxation. Under this taxonomy, the propriety of disclosure falls onto a spectrum, and transparency is more appropriate for ultrawealthy taxpayers in times of high economic inequality. The Essay thus provides insights to help policymakers design public-disclosure regimes that cohere with the norms implicit in our fiscal social contract with the state
Customary Corruption
Full text linkFor over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.
Using illustrative case studies, we demonstrate how this outsized role of customary practice may undermine the ability of tort law to protect patients from harm. Customary practice is shaped by a variety of factors, including physician education, scientific studies, and government regulation. Pharmaceutical companies influence these factors to alter physician practices and expand markets for their drugs, often at the expense of patient and public health. This industry pressure directly influences whether a physician is viewed as breaching their legal standard of care, undermining tort law as a form of private regulation of prescribing practices.
To address this problem, this Article argues for a shift in tort doctrine— the explicit abandonment of the rule that customary practice determines breach for prescribing practices, and a move to a reasonableness standard under which professional custom is only one aspect of determining breach. We address the doctrinal and medical benefits of such a shift and conclude that it is essential to the integrity of the private regulation of pharmaceuticals. Our thesis and arguments have significant implications for the role of custom in medicine more generally and for other legally recognized professions