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Nino's Paradox
No full textThis is an essay about how lawyers and judges manipulate the distinction
between changes in facts and changes in values when they interpret the
Constitution. This rhetorical manipulation allows them to portray changes in
social values merely as changes in facts.
Manipulating the distinction between facts and values serves several
important ideological functions in American constitutional law. First, it helps
make changes in constitutional values between the past and the present disappear
and helps preserve the belief that we still apply the Framers’ values today.
Second, it downplays or disguises the fact that changes in constitutional
interpretation are often the result of social conflicts and struggles over social
values outside of the Article V amendment process. Third, it helps preserve the
appearance (if not the reality) of judicial neutrality in current constitutional
conflicts, because judges are required to apply the same law to changing facts.
Fourth, it helps preserve the appearance (if not the reality) that in the face of
constant social and technological change judges can just apply the law without making any new and controversial value choices.
Because technology, social practices, and social values co-evolve, it is
often not possible to maintain a firm distinction between changes in facts and
changes in constitutional values. Lawyers and judges often describe constitutional purposes and rights at different levels of generality to disguise this fact and to make the Constitution better cohere with contemporary values—and with their own values. Moreover, applying the constitutional text in new technological
circumstances may upset the balance of competing normative assumptions that produced the constitutional text in the first place. As a result, technological change often alters the balance of constitutional values the law protects and even the nature of the rights and powers the Constitution guarantees. In short, because technology, social practices, and social values co-evolve, we are all living constitutionalists now, whether we are willing to recognize it or not.
I will have more to say about all of these matters presently. But first, a
little paradox
Italian Statuti: Views from a North American Curator
No full textSOURCE: In La libertà di decidere, da Cento a Cento, 1993-2024: trent'anni di studi sugli statuti (Enrico Angiolini et al., eds.; Firenze: Edifir, 2025), 559-575.From my perspective as a librarian from outside of Italy who has cultivated a collection of Italian statuti, I point out three opportunities involving this genre of legal literature. (1) There is a need for a comprehensive English-language guide to the genre, as a research tool that would promote awareness, particularly by comparative legal historians. (2) The genre’s unique features provide fertile ground for book historians. (3) As shown by my experience in the Yale Law School, the genre offers exciting opportunities for collaboration, particularly in digital projects and teaching
How Epic v. Apple Operationalizes Ohio v. Amex
No full textVol. 42:1The Supreme Court’s landmark decision in Ohio v. American Express
(Amex) remains central to the enforcement of antitrust laws involving digital
markets. The decision established a framework to assess business conduct
involving transactional, multisided platforms from both an economic and
legal perspective. At its crux, the Court in Amex integrated both the relevant
market and competitive effects analysis across the two distinct groups who
interact on the Amex platform; that is, cardholders and merchants. This unified,
integrated approach has been controversial, however. The primary debate
is whether the Court’s ruling places an undue burden on plaintiffs under
the rule of reason paradigm to meet their burden of production to establish
harm to competition. Enter Epic v. Apple (Epic): a case involving the legality
of various Apple policies governing its iOS App Store, which, like Amex,
is a transactional, multisided platform. While both the district court and the
Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are
of broader interest for their fidelity to Amex.
A careful review of the decisions reveals that the Epic courts operationalized
Amex in a practical, sensible way. The courts did not engage in extensive
balancing across developers and users as some critics of Amex contended
would be required. Ultimately, the courts in Epic (a) considered
evidence of effects across both groups on the platform and (b) gave equal
weight to evidence of both the procompetitive and anticompetitive effects,
which, this Article contends, are the essential elements of the Amex precedent.
Relatedly, the Epic decisions illustrate that the burden of production
on plaintiffs in multisided platform cases is not higher than in cases involving
regular, single-sided markets. Additionally, both parties, whether litigating
single-sided or multi-sided markets, are fully incentivized to bring evidence
to bear on all aspects of the case. Finally, this Article details how the
integrated Amex approach deftly avoids potential issues involving the out-
of-market effects doctrine in antitrust, which limits what type of effects courts
can consider in assessing conduct
Against Monetary Primacy
No full textTo reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation)fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has remained unchallenged by either political party and largely ignored by legal scholars. This Article exposes monetary primacy’s incoherence and proposes an alternative framework that relegates interest rate hikes to a supporting role in the fight against inflation. Governments possess other policy tools for controlling inflation that are better situated to lead. Examples include supply-side reforms to sectors facing bottlenecks, tighter fiscal policy, and more vigilant antitrust and consumer law enforcement. Between 2021 and 2023, the United States deployed many of these tools, albeit not necessarily motivated by inflation concerns. And while the Fed has received much attention for lowering inflation during this period, it likely had limited impact. Thus, our framework has descriptive power for the astonishing recent success in moderating excess inflation without causing a recession. That reality has, however, been missed—increasing the chances that the Fed keeps rates too high as the economy slows. Instead of monetary primacy, the Fed should set interest rates at a level that is best for long-term employment and price stability, known as the “natural” rate of interest. If inflation remains too high when interest rates equal the natural rate, then the Fed, the Executive Branch, and Congress should compare the sacrifice associated with raising interest rates above their natural rate to the alternative policy tools and choose the least costly option. We assert that, in many but not all cases, the preferred option will not be elevated interest rates, and we propose reforms to enable other institutions to respond effectively to inflation alongside the Fed. This proposal would shift U.S. policy from monetary primacy to macroeconomic pluralism, which means leveraging an array of economically beneficial (or at least less harmful) tools. In both the short term and the long term, moving away from monetary primacy will help increase the chances of conquering inflation, avoiding a recession, and expanding economic opportunity
Altering Rules: The New Frontier for Corporate Governance
No full textCorporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom. We argue, however, that the best approach lies neither in rigid mandatory rules nor unchecked contractual freedom—but in recognizing the potential of corporate law’s altering rules. Altering rules define how parties can opt out of the default rules of governance. Our theory identifies corporate altering rules’ essential features, namely, whose consent is required to change a default (process) and who is bound by that decision (scope). We show that the central role of altering rules in corporate law is not simply to make changing a default more or less difficult, as is widely supposed, but rather to combine process and scope in ways that define distinct bargaining environments, shaping how insiders negotiate over governance. Corporate law can fine-tune these features in ways that both encourage contractual innovation and manage intra-corporate risks. In response to recent cases and legislation, we propose new altering mechanisms that will broaden decision-making to include non-signatory shareholders, protecting them from harmful externalities. Altering rules, as they exist now, represent only a fraction of their potential. Rethinking their design opens the door to a vast, largely unexplored landscape of possibilities that could guide corporate governance in its new era of contractual innovation
Understanding Supreme Court Decision-Making Through Justices’ Personal Conference Notes: An Update on the SCOTUSNOTES Project
No full textVol. 36:2Several years ago, the National Science Foundation funded our project to collect Supreme Court conference notes, examine them, and provide researchers with the images and transcriptions of those records. The work is time-consuming and resource-intensive but quite promising. In this short article, we explain the project and our efforts toward it. We undertake three specific tasks. First, we give an overview of the data, explaining whose conference notes we examine and what those notes capture. Second, we share some preliminary insights those data have revealed. Though we are in throes of cleaning the completed transcriptions, already the data have revealed several fascinating substantive insights, spurred novel questions, and cast telling shadows on older questions. Third, we discuss where we hope to go from here, exploring where we (and you) might take this treasure trove of data
Disciplining Conscience: Judging Ecclesiastical Courts in the Early American Republic
No full textVol. 36:2American Protestants during the Second Great Awakening participated in one of the largest experiments in lay judging the nation has ever seen. It was not initiated among the countless (initially property-owning) white men sitting on local juries—but amidst those determining the social and spiritual fate of fellow church members accused of wrongdoing within local congregations. In a republic lurching towards official disestablishment of church and state, questions concerning the rights of lay members to judge others’—and their own—potential relationships with the church continually bubbled to the surface. Did lay members retain authority to visit possible offenders within the home, in an effort to reclaim them before initiating a church trial which might possibly endanger their membership? Were witnesses of such trials duty-bound to speak on behalf of those brought up on charges? When confronted with the dread sentence of excommunication, who held the final power to judge the state of one’s relationship to the church, or even to God? The body as a whole, or those threatened with discipline? Such internal struggles often revolved around questions of biblical procedure and due-process, defined as a legitimate form of law in the eyes of ministers and members alike. In a world where believers espoused the “right of private judgment” as their Protestant birthright over and against the church, controversy inevitably arose in the conflicts that followed
Farm Until It's Gone: Industrial Animal Agriculture and the Limits of Law
No full textThe way meat is produced today in the United States poses interesting challenges for law. A review of the harmful social and environmental impacts of contemporary meat production, when placed alongside the legal protections simultaneously enjoyed by the meat industry, suggests important missing elements from influential theoretical frameworks for analyzing social and environmental externalities. Industrial meat producers appear to be “law makers” more than they are “law takers,” complicating attempts to understand law merely as a precursor to bargaining over legally-endowed entitlements toward socially desirable outcomes
Laws of Address: The Impact of the Practice and Words of Address on Our Civil, Political, and Social Lives
No full textIn this Article I argue that the practice of individuals
addressing others, who in turn answer or otherwise respond when
addressed, contributes distinctively to what it means to be a
person in society with others. When uttered aloud, terms of
address and reference announce correlative entitlements running
between speakers and their audiences. These conventionally
spoken terms pervasively coordinate individuals in their everyday
interactions with others. Moreover, in the practice of addressing
others, speakers make claims of legitimacy and demands for
compliance. As such, addressing someone is a sign of authority,
like wearing a badge or a crown or any observable sign that can be
used as a focal point for effective coordination. Yet, in our social
lives the practice of address goes beyond strategic or rational
coordination, reaching to the core of what it means to be a person
in society with others. It touches on our uniquely human capacity
for evaluative self-reflection; some measure of dignity,
degradation or other sense of self often emerges when even the
most banal honorific or humilific is offered, or denied.
Consequently, the practice of address is a subject of extensive
social and emotional regulation, as well as, law and legal
regulation-the topic of this Article, which focuses principally on
what is deemed the first law of address
Special-Purpose Governments
No full textWhen one thinks of government, what comes to mind are familiar generalpurpose entities like states, counties, cities, and townships. But more than half of the ninety thousand governments in the United States are strikingly different: they are "special-purpose" governments that do one thing, such as supply water, fight fire, or pick up the trash. These entities have expanded far more rapidly than any other form of government. Yet they remain understudied, and they present at least two puzzles. First, special-purpose governments are difficult to distinguish from entities that are typically regarded as business organizations--such as consumer cooperatives--and thus underscore the nebulous border between "public" and "private" enterprise. Where does that border lie? Second, special-purpose governments typically provide only one service, in sharp contrast to general-purpose governments. There is little in between the two poles--such as two-, three-, or four-purpose governments. Why? This Article answers those questions--and, in so doing, offers a new framework for thinking about special-purpose governments. The fundamental difference between public and private enterprise exists not in the services provided or even the governance structure, but in how they are created: governments can compel membership and financial contributions in a given territory from the moment they are formed--in contrast to private cooperatives, which contract for membership and accept funds in exchange for the provision of services. Moreover, an overlooked reason why special-purpose governments may provide only one service flows from the efficiency benefits of having "owners" with relatively homogenous interests. Just as private agricultural cooperatives tend to involve a single crop--ensuring that controlling members will have convergent interests--special-purpose governments work best when they provide a single service for which all the members share common incentives. As a result, special-purpose governments have much in common with some private firms. But this is not to praise or justify these entities: the patchwork of laws governing special-purpose governments has not kept pace with the evolution of organizational law in private contexts. Private law may thus suggest reforms to let special-purpose governments achieve their unfulfilled potential