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THREE HAIL MARYS: CARSON, KENNEDY, AND THE FRACTURED DÉTENTE OVER RELIGION AND EDUCATION
No full textThe article focuses on two recent Supreme Court decisions, Carson v. Makin and Kennedy v. Bremerton School District, which address issues related to religion and education in public schools. The first case, Carson, upholds the use of state-run tuition assistance programs for religious schools, consistent with a history of accommodating religion in education. The second case, Kennedy, breaks from the established pattern by allowing a football coach to engage in prayer on the field
Resisting Renoviction and Displacement Through Cultural Land Trusts: Art and Performance Spaces, Pop-Ups, DIYs, and Protest Raves in Vancouver
No full textWinter 2022 | Volume 33, Issue 1This Article draws on ethnographic fieldwork to explore the use of cultural land trusts as local urban resistance to the displacement of arts and culture spaces in Vancouver. Cultural land trusts shift power back to relationally marginalized and displaced communities whose voices frequently fail to figure equitably within decision-making processes
affecting their urban landscape. Cultural land trusts draw on the community land trust and community ownership structure with the goal of preserving affordable access to land and space for arts and culture in the city. As previously marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work spaces for the arts sector are becoming less available. Their absence threatens the economic and cultural potential of art and the physical dimensions necessary for the sustainability of urban art and culture
Better Rules for Worse Economies: Efficient Legal Rules Over the Business Cycle
No full textLaws and regulations designed for robust economies often perform miserably in deep recessions. In a healthy economy, the best legal rule from an economic perspective maximizes productive capacity. In a recession, however, spending, not productive capacity, limits the size of the economy. Recessions also shift incentives, meaning that inputs to an efficient legal rule change with the business cycle for microeconomic as well as macroeconomic reasons. As a result, legal rules that are efficient in a growing economy often waste resources in recessions. Unemployment insurance (" UT") eligibility rules illustrate the business cycle variability of the efficient legal rule. In robust economies, tight unemployment eligibility rules maximize capacity by encouraging greater labor supply and consequently higher output. In recessions, by contrast, labor supply does not, constrain output. Boosting incentives to find work does not increase employment when jobs, rather than workers, are scarce. Instead, spending (" aggregate demand") is the economy's limiting factor. In recessions, lax unemployment eligibility rules reduce inequality and enhance spending and demand for labor, resulting in higher output. Previous writing in law and macroeconomics prescribes a" countercyclical legal policy" response to variability in the efficient legal rule over the business cycle.'If strict legal rules raise output in ordinary times but permissive rules raise output in recessions, then legal rules should be tight in the growth phase of the business cycle but lax in recessions.'And UT policy sometimes strives for this countercyclical variation. In the CARES Act passed in March 2020 to mitigate COVIID-19's devastating impacts on the economy
The Limits of Prodemocratic International Law in Europe
No full textTom Ginsburg's Democracies and International Law explores the ways in which regional human rights regimes have been designed to promote and protect democracy and the degree of their success in an age of democratic backsliding. In this symposium contribution, I examine the impact of the relationship between the European Union (E.U.) and Turkey on that country's record of democratic backsliding. I argue that European countries' difficulties in managing multi-racial democracy have limited the depth and effectiveness of the E.U.'s pro-democratic commitments in its dealings with Turkey
Feasibility Analysis and the Climate Crisis
No full textVol. 39 Issue 2Agencies prepare feasibility analysis when proposing standards limiting greenhouse gas emissions and explicitly base their standard-setting decisions on what is feasible. They do this because the relevant statutes demand maximization
of feasible emission reductions. Cost-benefit analysis (CBA) provides a supplement to the statutorily required analysis.
This Article argues that the President should limit CBA’s role in light of the urgency of the climate crisis, primarily to minimize delay and clear potential obstacles to effective climate policy. Specifically, the President should repeal the executive orders requiring CBA. While agencies would still have to prepare CBA for very expensive rules under the Unfunded Mandates Act, repeal of those orders would allow agencies to use CBA to inform Congress rather than influence agency standard setting.
This Article explains what feasibility analysis is and argues that the need to do all we are capable of doing to avoid, or at least ameliorate, the climate crisis justifies allowing feasibility analysis to displace CBA. Indeed, responsible governments respond to crises by doing all that is feasible to avoid or at least ameliorate them, not by asking whether every action needed to address a crisis generates quantified benefits exceeding the cost.
It suggests, however, that the executive branch reorient feasibility analysis to focus more on consumer welfare than on preserving existing firms in light of the need to transform the economy to deal with the climate crisis. The feasibility requirement demands that the goods and services firms provide remain available to consumers, albeit sometimes in altered form, but need not be interpreted to protect existing businesses
Addictive Technology and Its Implications for Antitrust Enforcement
No full textThe advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like
tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will increase the likelihood that some firms will vie to offer higher-quality and safer platforms. For this reason, evaluating harm to innovation (especially safety innovation) and product variety may be particularly important in social media merger and conduct cases.
Another critical element to antitrust enforcement in this space is a correct accounting of social media’s addictive qualities. Standard antitrust analysis seeks to prohibit conduct that harms consumer welfare. Economists have taught the antitrust bar that the output of a product or service is a reliable proxy for
consumer welfare. However, output and welfare do not have this relationship when a product is addictive. Indeed, in social media markets, increased output is often harmful. We argue that antitrust analysis must reject the output proxy and return to a focus on consumer welfare itself in cases involving addictive social media platforms. In particular, courts should reject defenses that rely only on gross output measures without evidence that any alleged increases in output actually benefit consumers
THE MYTH OF THE LABORATORIES OF DEMOCRACY
No full textA classic constitutional parable teaches that our federal system of government allows states to function as "laboratories of democracy." This tale has been passed down from generation to generation, often to justify constitutional protections for state autonomy from the federal government. But scholars have failed to explain how state governments manage to overcome numerous impediments to experimentation, including resource scarcity, free rider problems, and misaligned incentives. This Article maintains that the laboratories account is missing a proper appreciation for the coordinated networks of third-party organizations (such as interest groups, activists, and funders) that often fuel policy innovation. These groups are the real laboratories of democracy today. They perform the lion's share of tasks necessary to enact new policies; they create incentives that motivate elected officials to support their preferred policies; and they mobilize the power of the federal government to change the landscape against which state experimentation occurs. If our federal system of government seeks to encourage policy experimentation, then courts should endeavor to create ground rules for regulating competition between political networks, rather than continuing futile efforts to protect state autonomy. This Article concludes by sketching some implications for several areas of legal doctrine, including federal preemption of state law, conditional spending, and the anticommandeering principle
Promoting “Climate Change Plus” Industries Through the Administrative State: The Case of Marine Aquaculture
No full textVol. 39 Issue 2Climate change has reached its “all hands on deck” moment, requiring simultaneous mitigation and adaptation efforts and the participation of all branches of government at all levels—including (and maybe especially) the administrative state. However, while certain agency exercises of climate change discretion have received considerable commentary, less attention has been paid to the ability of federal and state agencies and tribes to promote what this Article terms “climate change plus” (CC+) industries—that is, new, emerging, or expanding industries that can assist climate change mitigation or adaptation (or both) despite not being obviously connected to climate change. Therefore, unlike renewable energy, these industries are unlikely to
inspire major legislative changes in policy or new statutory incentive programs as part of a larger climate change initiative. Nevertheless, these industries can still contribute to the nation’s efforts to meet climate change mitigation and adaptation goals, underscoring why the administrative state needs to carefully evaluate such industries through a climate change lens
when exercising regulatory discretion
Legal Principles, Law, and Tradition
No full textWinter 2022 | Volume 33, Issue 1Legal reasoning and legal discourse take place within historical traditions that develop over time. Law is characterized by the authoritative presence of those historical traditions. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. These social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the moral reasoning of legal participants—all of which have been mistakenly left aside by many legal positivists and their usual focus on coercive institutions.
I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The Hart-Dworkin debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by le al positivism, is entirely consistent with the existence of legal principles