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Interpolity Law and Jurisdictional Politics
No full textChallenging the common assumption that legal misunderstanding was pervasive, this article analyzes jurisdictional politics as an element of "interpolity law"—a broad framework for legal interactions across polities and regions in the early modern world. It draws on recent research on jurisdictional politics to show how such an approach allows historians to avoid some of the familiar pitfalls associated with studies of legal pluralism. This approach provides clear methodological advantages over the study of global legal history as a function of multi-normativity. Political communities across the globe centered on internal and external conflicts on the nature and reach of legal authority. By focusing on jurisdiction as a touchstone of legal action and tracing how legal authority was produced through conflict, our approach treats legal pluralism as a valuable descriptive term rather than an analytical framework. The study of jurisdictional politics portrays state authority as potentially one among many forms of legal authority, and it brings into sharp focus continuities within and across pluri-political regions. By tracking broad institutional shifts that occurred when empires and states moved to assert power over multi-jurisdictional orders, the perspective informs new narratives about trajectories of regional and global legal order
Discretionary Investing by ‘Passive’ S&P 500 Funds
No full textVol. 41:248So-called passive index funds—investment funds that are designed to
track a pre-specified underlying index—have become a dominant force in
the investing landscape, collectively controlling over 12 trillion in assets. It
is widely assumed that these funds are obligated to follow their underlying
index, and that fund managers cannot, or do not, select portfolios that deviate
from the index’s holdings. As a result, various critics have attacked these
funds, raising concerns about their corporate governance incentives and
their influence on market efficiency.
We show this assumption is overly simplistic. To do so, we examine
funds that track the most prominent index, the S&P 500. S&P 500 index
funds do not typically commit to holding even a representative sample of the
underlying index, nor do they commit to replicating the returns of that index.
Managers have the legal flexibility to depart substantially from the underlying
index’s holdings. We also show that these departures are commonplace:
S&P 500 index funds routinely depart from the underlying index by meaningful
amounts. While these departures are largest among smaller funds, they
are also present among megafunds: even among the largest S&P 500 funds,
holdings differed from the index by a total of between 1.7% and 7.5% in the
fourth quarter of 2022. Across all S&P 500 funds, these deviations amounted
to almost 61.5 billion in discretionary investment decisions. Moreover, at
least within observed ranges, we find no meaningful relationship between
these deviations and investment flows.
In sum, S&P 500 index funds have substantial investment discretion,
which they exercise to an extent not previously recognized. Our findings
complicate the narrative around index funds and weaken many of the criticisms
levied against them. At the same time, to the extent that investors—and
particularly retail investors—fail to recognize this discretion, our findings
suggest they may not be getting what they expect
Celebrating Michael Olivas
No full textThe article focuses on celebrating the life and work of Michael Olivas, a prominent figure in legal academia. It discusses Olivas's contributions to legal scholarship, particularly in the areas of education and engaged scholarship. It highlights Olivas's critique of higher education and miseducation, emphasizing issues such as inequality, access, and diversity in the legal profession and academia
"Who Was Your Grandfather on Your Mother's Side?" Seduction, Race, and Gender in 1932 Virginia
No full textVol. 35:4Was Dorothy Short Black? And, more importantly, did she
know it? These questions, odd-sounding and perhaps unsettling to the
contemporary reader, were the ones raised by Leonard Harry Wood in
the hopes of avoiding prison for the crime of seduction. This Article
examines the story of Dorothy Short and Leonard Wood, their
relationship, and the criminal case that followed it in order to explore
the ways in which seduction laws worked to create ( and recreate)
gendered categories of race. The Article's main contribution is
shedding new light on the 1932 Virginia Supreme Court case Wood v.
Commonwealth of Virginia, and more broadly on the ways in which
seduction jurisprudence influenced racialized understandings of
gender
A Comparative Look at the Rise of "American Arbitration": Reflections on Private/Public Partnership in French and American State-Building
No full textVol. 35:3In both the United States and France, conceptions of the state and its relationship to civil society are defined in part in antithesis to that of the transatlantic other. The United States has long claimed an exceptionalist history of relying on civil society to promote democratic governance-and individual liberty-in the absence of state authorities. France and its bureaucratic state are taken as representative of the dangers that follow from overly empowering the state-including a sclerotic economy ill-equipped to adjust to change and rigidly uniform notions of cultural identity, hostile to racial and religious difference. Emerging out of the French Revolution, France, in turn, embraced a Jacobin ideal of state/society relations, pursuant to which the state is responsible for ensuring individual equality under the law by preventing the intermediation of any private groups. On this view, it is the state alone that can be trusted to act for the public good. And the United States stands as a powerful example of the ills that follow from enabling private groups to usurp public authority-including the disproportionate empowerment of the wealthy and animosity between different racial and religious groups
The Enduring Relevance of Congress Despite the Court's Shift to" Ordinary Reader" Statutory Interpretation.
No full textHas Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court's new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism's perspective, from an "insider" perspective focused on Congress 's textual choices, to an "outsider" perspective based on how "ordinary people" read statutes. The Court's self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars--including first-generation textualists--had for a century focused on legislative supremacy and Congress 's practices and intentions, today, a majority of the Court claims its role is something entirely different. Rather than serve as a "junior partner" of the legislature, the Court says its role is to enforce a populist conception of how regular people encounter statutes, as well as the value of fair notice. But as it turns out, divorcing statutory meaning from Congress is not as simple as it looks. Our review of statutory interpretation cases over the past six Terms illustrates that, despite their protests, even the most ardent textualists' opinions that purport to turn on ordinary meaning are in fact riddled with implicit--and sometimes explicit--assumptions about congressional intent and how Congress drafts, including surreptitious uses of legislative history. This Essay explores the Court's rhetorical shift and why it has not been complete in doctrinal implementation. The congressional perspective in fact remains ubiquitous in the Court's interpretive work, even as the Court disavows it
Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity
No full textThe article focuses on Jack M. Balkin's exploration of constitutional fidelity through the lens of Rabbi Akiva's story and its implications for interpreting legal texts. Topics include Jonathan Gienapp's critique of conservative originalism, the inherent challenges of adapting historical legal frameworks to modern contexts, and the balance between maintaining fidelity and embracing creativity in constitutional interpretation
Major Questions About International Agreements.
No full textThe Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments. The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional–executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them. Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways. After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law
Pandemic State-Building: Chinese Administrative Expansion Since 2012
No full textIn 2020, with the onset Of the COVID-19 pandemic, China embarked on one Of the largest expansions of administrative capacity in its modern history. Compared to its pre-COVID self, the current Chinese government can now track and manage individual activity with unprecedented precision and regularity. While some Of these developments were emergency measures that were limited to the pandemic, many of them have become institutionally entrenched through generalized lawmaking and policymaking, permanently transforming the Chinese government's relationship with its population. Most importantly, the Party-state delegated enormous administrative-law enforcement and information-collection powers to two levels of urban government-the "subdistrict," and below it, the "neighborhood community"-that used to be institutionally marginalized. This Article is the first systemic study of this paradigmatic transformation. Through a comprehensive analysis of central-level laws, regulations, and policies, paired with local case studies from major cities, it traces the institutional framework and political logic of Chinese administrative expansion. Its core argument is that the sudden onset of COVID-19 forced cohesive action onto a previously internally conflicted political landscape. Chinese leaders had contemplated a significant expansion of urban local governance as early as 2012, when Xi Jinping first rose to power, but as recently as 2018-19, they still seemed torn about its potential to aggravate principal-agent problems within the Party-state. The arrival of the pandemic rapidly and definitively resolved this internal debate in favor of expansionism, producing the extraordinary informational and law-enforcement apparatus that now exists in close proximity to every urban resident
The SCALES project: Making federal court records free
No full textFederal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical scrutiny. In this Essay, we introduce the SCALES project: a new data-gathering and data-organizing initiative to right this wrong. SCALES is an online platform that we built to assemble federal court records, systematically organize them and extract key information, and—most importantly—make them freely available to the public. The database currently covers all federal cases initiated in 2016 and 2017, and we intend to expand this coverage to all years. This Essay explains the shortcomings of existing systems (such as the federal government’s PACER platform), how we built SCALES to overcome these inadequacies, and how anyone can use SCALES to empirically analyze the operations of the federal courts. We offer a series of exploratory findings to showcase the depth and breadth of the SCALES platform. Our goal is for SCALES to serve as a public resource where practitioners, policymakers, and scholars can conduct empirical legal research and improve the operations of the federal courts. For more information, visit www.scales-okn.org