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On Marching Karens and Metaphorical Black Women
No full textVol. 34.2:40In 2021, the New York Times published “March of the Karens,” an article that described a figure who symbolizes all that is wrong with contemporary feminism: Karen. Ligaya Mishan describes Karen as an “interfering, hectoring white woman, the self-appointed hall monitor unloosed on the world, so assured of her status in society that she doesn’t hesitate to summon the authorities . . . for the most trivial and often wholly imaginary transgressions.” In a moment when leftist calls for abolishing and
defunding the police proliferate, Karen enacts her power by enlisting and supporting the police in her violent anti-Black efforts all the while disavowing the power she wields. Karen calls the police on Black people engaged in the most ordinary of activities, including Black children selling water, Black people stenciling on their own homes, Black families barbecuing, and Black people bird-watching
Equal Treatment Agreements: Theory, Evidence & Policy
No full textVol. 40:620While the rise of dual-class companies—companies like Facebook, Google, and Visa, which have two or more classes of common stock that differ in voting rights—has been widely observed over the past decade, prior commentators have largely overlooked the important “equal treatment” agreements that are embedded in many dual-class charters. Equal treatment agreements require that stockholders are treated equally, for example by ensuring that all stockholders receive the same consideration per share in the sale of the company, thereby potentially taking away one of the most important benefits of holding the high-vote shares. Using an original database of 312 dual-class charters and their equal treatment agreements, this Article is the first to conduct a robust empirical analysis of equal (and unequal) treatment agreements in dual-class companies. As a policy matter, the Article identifies when such structures are desirable and efficient from a law-and-economics perspective. In doing so, this Article highlights certain agreements (which I term “unequal treatment agreements”) that require equal treatment except for a fixed proportion of disparate consideration as promising structures to facilitate efficient deals, deter inefficient deals, and manage moral hazard. Based on this analysis, the Article provides implications for stakeholders including founders, investors, practitioners, and courts
Pink Tax and Other Tropes
No full textVol 34 Issue 1Law reform advocates should be strategic in deploying tax tropes. This Article examines five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—and demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative “taxes” in the form of other real-life burdens or differences. Slogans referring to figurative taxes have descriptive force in both popular and academic literature as a shorthand for group-based disparities, but they have limited impact on law and human behavior. This Article catalogues and evaluates what makes for effective tax talk, in terms of impact on the law generally as well as day-to-day actions on the ground. With this roadmap, lawyers, policymakers and others will be able make more forceful and precise arguments aimed at reforming the law and changing human behavior.
This Article makes three principal claims—one descriptive, one empirical, and one normative. The Article first develops a taxonomy of tax phrases based on the object of critique. The classification distinguishes between criticisms of compulsory formal levies, on the one hand, and burdens or oppressions that are akin to taxes, on the other. The taxonomy
also accounts for differences among tax tropes based on their linguistic form.
Some phrases deploy a single-word modifier for “tax” (“nanny,” “death,” or “soda”) to signify a larger relationship, event, or transaction that is subject to taxation. Other phrases use a single-word modifier for “tax” (“Black” or “pink”) that is strongly associated with the persons subject to taxation
WHAT IS PROPERTY LAW IN AN AGE OF STATUTES AND REGULATION?: A REVIEW OF PROPERTY: PRINCIPLES AND POLICIES BY THOMAS MERRILL, HENRY SMITH AND MAUREEN BRADY
No full textThe Fourth Edition of Property: Principles and Policies by Thomas Merrill, Henry Smith and Maureen Brady lays out what the field's leading thinkers believe we all should know about property law. Unlike most casebooks, the book is an intellectual achievement, a powerful argument made through educational materials. But it is premised on a set of beliefs, common among property law scholars, about what is important about the field. Although it discusses many legal and policy issues, Property: Principles and Policies focuses on the common law of property and the structure of property rights, both in theory and in historical practice. However, the property law it presents is often quite distant from how we actually regulate the uses and transfers of real property today. For better or for worse, we live in an age of statutes and administration. From mortgage regulation to zoning to property tax policy and administration, the most important means through which we regulate real property fall outside of the common law. The book, and indeed much of the work done by property law scholars, does not wrestle with the methods through which government institutions regulate real property. While systems of real property regulation build on the structure of property rights established over time, most relevant legal and policy disputes about real property do not turn on interpretations or changes in the common law of property. Instead, they are instances where other types of law--administrative, local government, securities, and tax, among others--apply to real property. Focusing on the traditional common law of property, rather than the effects other types of law have on real property, is not a mistake. It is a choice. But it is a choice that comes with costs for students and scholars alike. Most real property regulation is done through state and local governments. First-year students, whether they have requisite traditional property law courses, federal-law focused "Leg-Reg" courses, or both, are often not exposed to how state and local governments work. Similarly, focusing on the common law and the theoretical structure of property rights renders property law scholars less able to be useful to legal and policy disputes. The rich insights of property law theory could contribute more to contemporary law and policy if scholars took seriously the institutions that regulate most property most of the time
Feminism, Legal Activism, and Sex Work: Reconciling to Move Forward
No full textVol. 34.2:115When it comes to the sex trade, some principles of feminist legal theory have done grave damage to those on the ground. While intended to uplift, these principles have instead created more violence, discrimination, and gender-based hierarchies. Two main areas where feminist legal theory has failed to appreciate the lived realities of sex workers are its reliance on the criminal legal system and its limited view of who counts as a woman.
While I wish to explore the relationship between theory and practice, I reject the idea that these are two separate spheres that should interact. This view posits that the interaction between theory and practice is a choice, but it is not. Sex work has inspired theories on how to understand and address certain issues related to transactional sex. The creation of theories and their
implementation impacts people in the sex trades. This interaction is a constant reinforcing loop, but only theorists can choose to ignore it. While we should continually re-envision what lessons from the ground feminist legal theory can learn from, the exchange between theory and practice must begin with repair, and it must recognize the effect that feminist legal theory
has already had on people who trade sex. This work must begin to repair the incredible damage done to sex workers as a result of the implementation of these theories
The Corporate Governance of Public Utilities
No full textVol. 40:569Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high-profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal-ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they have emerged as powerful opponents of state and federal climate action.
This Article describes the unique corporate governance challenges public utilities face and argues that these governance challenges contribute to the pervasive inefficiencies and the frequency of corporate misconduct that characterize utility industries. American corporate law provides special protections to shareholders, such as the right to elect corporate boards and the requirement that directors and managers owe fiduciary duties to shareholders. The economic justification for these protections is that shareholders are the residual claimants of corporations: because they receive any value a corporation generates beyond what it owes to its fixed claimants, they have the appropriate incentives to pursue value-enhancing investments
Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial Process
No full textVol. 34-1Revisiting The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921, presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal “path,” or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases
Crawling Out of Fear and the Ruins of an Empire: Queer, Black, and Native Intimacies, Laws of Creation and Futures of Care
No full textVol 34 Issue 1Queerness is a generative desiring; it is an evoking of the playful, unpredictable, capacious possibilities of being in bodies, expressing selves, and exploring intimacies. In a society of definitive meanings, where identities signify specific and predictable positions, queerness insists on the incompleteness of any one structure of organizing individuals and relationships. While the social order is diluted by narratives instructing how relationships form, evolve, and get hierarchized, queer relationalities reject
the simplicity of common-sense assumptions; in their place creating a playground of love, care, and dependencies. Against the fantasy of the monogamous couples and their biological families, for example, queer peoples have developed hand-made relational configurations. They intermingle friendships, families, lovers, and partners; they render these categories flexible and allow the individuals to give them meanings based on their unique patterns of connection, communication, and communion. Queer peoples have metamorphosed sensuality, from a private act of coupled intimacy, into what can pervade across social relations and positions. Intimacies take shape between individuals who may not know each other’s names, and in public spaces where privacy is carved out; sensuality becomes a part of body language between those who may not engage in sexual acts —
it structures one’s disposition and gendered presentation. Intimacies turn into enactments of losing and gaining control, which stretch the definitions and functions of bodies
THE APA AS A SUPER-STATUTE: DEEP COMPROMISE AND JUDICIAL REVIEW OF NOTICE-AND-COMMENT RULEMAKING
No full textThe Administrative Procedure Act of 1946 (APA) is a “super-statute,†creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism†maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted an even more aggressive judicial role to limit agency rulemaking that has large-scale social or economic impact. As an initial matter, this Article responds to the methodological premises of some of the APA originalists. They tend to approach the APA as through a time machine and seek the answers to today’s issues that they say are embedded in the 1946 law. APA originalists also tend to view the APA as a “shallow compromise,†enacted because the exhausted stakeholders wanted closure, and seek to limit administrative law to what they consider the narrow parameters of that compromise. This Article contests these premises. The APA was what political philosophers call a “deep compromise,†where stakeholders’ positions evolved in the course of the long debate and reached a creative resolution of governance issues that has proven to be lasting. Original public meaning for super-statutes such as this one ought to focus on the law's important concepts, which in this case are rooted in democratic theory. Even viewed as a shallow compromise through the mechanism of a time machine, the APA presumes the availability of judicial review for agency rules, encourages a hard look at fishy agency reasoning, and tolerates or even valorizes a deferential attitude toward agency interpretations under many circumstances. Understood as a deep compromise whereby conservatives accepted the legitimacy of the modern administrative state and liberals accepted procedural guardrails protecting against secret or arbitrary agency rules, the APA supports a presumption of judicial review, hard-look examination of agency reasoning, and deferential consideration of agency reasoning. The doctrine that is most offensive to a serious APA originalism—whether the law is treated as a shallow or a deep compromise—is the Roberts Court’s creation of a “major questions doctrine†that antidefers to agency rulemaking having large social or economic effects, even when the agency action is authorized by the plain meaning of statutes broadly delegating rulemaking authority
Climate Change Mitigation as an Obligation under Customary International Law
No full textVol. 48Climate treaties impose few substantive obligations with respect to climate
change mitigation. This Article explores customary international law as an
alternative source of such obligations. Such a task faces considerable
methodological difficulties due to the tension between ascending and descending
reasoning in the identification of customary international law. This Article
argues that the methodology typically followed by international courts would
likely lead to the identification of a customary obligation of climate change
mitigation, though only one which requires states to comply with the standard of
care that most of them generally follow—rather than the ambition suggested by
global mitigation objectives. Although it could be difficult to assess a state’s
requisite level of mitigation action, compliance with customary law could be
tested by breaking down the customary mitigation obligation into implied duties
that reflect the measures that states would generally be expected to take when
exercising due diligence