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Foreword: From Ownership to Credit
No full textAn introduction is presented in which the editor discusses the topics in the issue including the role of credit and liquidity in shaping American property law, leading to implications for property theory in general
TOWARD A "TENDER OFFER" MARKET FOR LABOR REPRESENTATION
No full textAmerican workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But this strategy does not seem to be working for enough workers. Despite some recent renewed activity, private-sector unionization rates remain below ten percent and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article proposes a radical fix to the problem of declining unions. Drawing inspiration from corporate governance and its success in delivering financial returns to shareholders, the Article proposes allowing pro-worker investors to offer workers cash upfront for the right to represent them. If an investor succeeds in persuading a majority of workers in a workplace, the investor would be certified as the exclusive bargaining representative for the workers, and would be entitled to a percentage of any wage gains it obtained for the workers through collective bargaining. The resulting market for union representation would deliver cash to workers upfront, allow investors to demonstrate their capacity for delivering concrete results to workers, and attract resources to the cause of improving workers' conditions of employment. This new methodological approach also provides a lens for a constructive reevaluation of the objectives and tactics of American labor law
Defining Crime, Delegating Authority—How Different Are Administrative Crimes?
No full textVol. 39:304 2022As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking—to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty—not
the abstract “liberty” said to be protected by the separation of powers, but rather the lived liberty gained through careful and accountable criminal lawmaking that is free from the pathologies that have bedeviled federal criminal law for more than a century—administrative crimes are normatively quite attractive
Net Cash Per Share: The Key to Disclosing SPAC Dilution
No full textVol. 40:18 2022The Securities and Exchange Commission (SEC) has recently proposed regulations that would address a wide range of issues governing special purpose acquisition companies (SPACs).1 Central among these issues is the disclosure of a SPAC’s dilution and dissipation of cash as of the time of its merger, a topic two of us have addressed in an earlier article.2 The SEC’s concern (and ours) is that when a SPAC exchanges its equity for that of a target company, the value of the SPAC's equity is not what it appears to be, and not what it is stated to be in its merger agreement. First, the SPAC’s equity is spread among claimants that paid no cash into the SPAC. Second, much of the cash that was paid into the SPAC at the time of its IPO will have been paid out to various advisors by the time of the merger. As the SEC proposal recognizes, SPAC proxy statements fail to disclose how little net cash each SPAC share represents, and hence how much net cash will be exchanged for shares in the merger target
EMPIRICAL RESEARCH IN PROPERTY: VICKI BEEN AS ROLE MODEL
No full textFrom the outset of her career, Vicki Been has written articles with an empirical focus. Her important works discuss, among other topics, exactions, environmental challenges to the location of locally unwanted land uses, and the effects of land uses on nearby property values. In 2014, she co-authored a standout article on the politics of rezoning in New York City. She and her co-authors found that, even in the nation's densest city, homeowners opposed to development usually have the power to thwart densification. Law professors generally have done less than both economists and historians to reveal the functioning of property institutions. Nonetheless, legal analysts have made important contributions. In addition to the works of Vicki Been, the Essay highlights the findings of, among others, Thomas Merrill on public use issues, Krier and Sterk on takings, Ward Farnsworth on bargaining over a nuisance dispute, and Henry Hansmann on the rise of condominium ownership. To be relevant, an empirical project needs a theoretical underpinning. The Essay concludes with a dab of theory. Scott Shapiro, a legal philosopher, stresses the importance of plan-making to individuals, families, business firms, and governments. I assert that predictable property rights are a prerequisite to successful planning. My confidence in attending this conference, for example, depended on stable property rules. The rules that underlie private property played an essential part, but the rules of public and communal property crucially supplemented them
The Remediless Reading Right
No full textFlorence M. Kelley ’37 Family Law Prize
V. Schultz
To the student who demonstrates exceptional interest or achievement in the area of family law
[Note: This prize is awarded on the selection of Family Law teachers: NeJaime and Schultz for a paper]Lawmakers nationwide are trying to improve reading by embracing a scientific consensus regarding literacy acquisition and enacting robust regulatory regimes touching every part of the learning process. For most actors, “Right to Read” laws establish clear accountability rules and noncompliance remedies. However, students who are not provided with statutory reading entitlements have inconsistent or nonexistent remedies against their schools. As a result, states do not hold accountable educators using debunked instructional methods and schools failing to provide necessary interventions. And courts abstain from enforcing their entitlements based on anachronistic research and policy. This Note introduces the new literacy science and laws, arguing descriptively that Right to Read regimes are enforceable under an implied right of action or a statutory negligence claim. Nevertheless, it recommends that lawmakers enact a public enforcement scheme that would better serve the students most in need of support
COMMENT ON FREEDOM OF EXPRESSION IN AMERICAN LEGAL EDUCATION
No full textThe author argues that framing the tension in American law schools as a freedom of expression issue is unhelpful and inaccurate.It suggest that the core issue lies in the pedagogical question of how best to achieve the educational mission of law schools. It also mentions that the principles of free speech, which are essential for democratic self-governance. The author emphasizes the importance of empathy, and creative educational interventions in navigating the challenges faced by law schools
Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism
No full textWinter 2022 | Volume 33, Issue 1The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed “executive powers” (like removal) that would make
a President stronger than a king
Property in Land in the Early United States
No full textThe article discusses the role of land in the early United States including the role of land speculators in the 18th century and the development of Manhattan real estate during John Jacob Astor's lifetime
First Amendment Metaphors: The Death of the “Marketplace of Ideas” and the Rise of the Post-Truth “Free Flow of Information”
No full textVolume 33, Issue 3As cognitive linguists George Lakoff and Mark Johnson have shown, metaphors are words “we live by.” In law, they are words we govern by. The “marketplace of ideas,” introduced into the jurisprudential imagination just over a century ago by Justice Holmes dissenting in Abrams v. United States, persists as the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression. It envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out.
But the marketplace metaphor is a relic. Today’s expressive ecosystem dramatically departs from the metaphor’s core assumptions, marked by information overload and replete with misinformation and lies proliferated by speech platforms unable or unwilling to act as “arbiters of truth.” These dynamics are better described by another First Amendment metaphor, “the free flow of information,” which has operated as a stealth metaphor: obscured by the ubiquitous marketplace metaphor, it has done enormous work within the doctrine without much critical notice. The metaphor’s logic privileges information over ideas, prioritizes content quantity over quality, and removes accountability from the system of free expression. In the end, truth is the casualty