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The Temptation of Cosmic Private Law Theory
Get PDFIt’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival of natural law theory in the wake of John Finnis’s publication of Natural Law and Natural Rights. To be sure, natural law theorists have turned their attention to private law topics, but until recently there have been few efforts to provide natural law synthesis of private law theory. Nicholas McBride’s ambitious two-volume work The Humanity of Private Law offers such a synthesis. These books are a tour de force of scholarship. The Humanity of Private Law combines a deep understanding of legal doctrine, a broad engagement with contemporary private law theory, moments of trenchant social criticism, and a subtle set of philosophical arguments that range well beyond the normal scope of jurisprudence. They are the sort of books that repay close reading and from which one can learn much. They also, however, offer a cautionary tale of the limits of legal theory. The very fecundity and depth of contemporary debates over private law creates a temptation toward what we might call cosmic private law theory. The dangers of this temptation are also on display in The Humanity of Private Law
Alternative Solutions for Government Intervention in Climate Crisis Markets: Price Gouging and the Pandemic Egg Market Case Study
Get PDFThe cost of a thing is the amount of what I will call life which is required to be exchanged for it, immediately or in the long run.
The incredible, edible egg.
Fires in California, hurricanes along the Gulf, a worldwide pandemic—it is evident that the year 2020 was defined by great crises, most of which were direct results of or exacerbated by climate change. The effects of these crises on broader American society, in particular that of the COVID-19 pandemic, are just beginning to be realized. Nearly every aspect of American life has been impacted by the pandemic and by the corresponding responses of state and federal governments.
Rapid price increases are a common thread linking environmental catastrophes of various causes. Environmental catastrophes, like hurricanes, droughts, and pandemics, all can create scarcity, causing prices to rise. Depending on the magnitude, these price increases may be characterized as “price gouging.” Price gouging as a practice, and crisis price increases more broadly, can take many forms, have varying causes, and are not infrequently the subject of litigation and academic controversy.
The 2020 pandemic-induced price increases were unique in their sheer breadth: commodities from thermometers to toilet paper experienced nationwide price shocks, due to increased demand, challenges to supply chains, or both. The strain that the pandemic placed on the food supply was particularly unprecedented. Animal protein markets experienced never-before-seen challenges to their supply chains, while simultaneously dealing with skyrocketing demand. Of these commodities, the egg market experienced the most dramatic shift in price, with a consumer price index increase of 16.1% in April. The next highest increase was 4.3%, for the commodity category of meat, poultry, and fish.
These commodity prices eventually leveled out, and by July even egg prices had returned to relative stability. Even so, four state attorneys general brought actions against egg suppliers for price gouging through the spring and summer of 2020. In addition, calls for federal price gouging legislation have been renewed along bipartisan lines, despite overwhelming distaste among neoclassical economists for the kind of price ceilings these laws create.
Traditional economic critiques, however, have largely ignored the broader ethical, political, and moral concerns of politicians and voters that keep restrictions on price gouging popular. These concerns ensure that anti-price gouging laws are an indefinite fixture in American law. Litigation under anti-price gouging laws, however, is not the only option that federal and state governments have to prevent or mitigate crisis price increases.
This Note uses the egg market as a case study to present four policy alternatives that state and federal governments may consider in addressing crisis price increases, rather than resorting to anti-price gouging litigation. Part I narrows the scope of discussion and defines price gouging, a term that can be emotionally charged. Part II tells the story of the 2020 egg market, which is both an intrinsically valuable case study and a useful model to frame policy alternatives. Part III examines the theoretical underpinnings of price gouging to develop a dichotomous framework with which to evaluate policy alternatives. Part IV presents and analyzes the four policy alternatives using this framework. The goal of this Note is to describe and analyze alternatives to litigation that will better resolve the concerns that anti-price gouging laws attempt to address
Manipulation and the First Amendment
Get PDFThis Article examines new conceptual tools for understanding manipulation and its harms. More specifically, Part I draws from ethicists\u27 insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions.
Part II explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. As a threshold matter, note that manipulative online interfaces and related design choices may be better understood as conduct, rather than speech protected by the First Amendment. When we recall that the First Amendment fails to cover, much less protect, every use of language, one can plausibly understand the First Amendment\u27s coverage to exclude data collection and the use of algorithms (that is, instructions to machines) because they do things rather than say things. This important possibility deserves attention and consideration. This Article, however, assumes arguendo that courts may characterize the sorts of manipulative practices discussed here as speech covered by the First Amendment, and then explores the constitutional implications of that assumption.
This abstract has been adapted from the author\u27s introduction
PREP Tool - Planning for Resilience: Evaluation and Prioritization
Get PDFThe PREP Tool is a three-step process to support local governments in establishing a set of resilience priorities informed by level of risk, resilience efforts to date, and best practices in resilience planning. The tool provides a starting point for local governments who have not yet evaluated their vulnerabilities, assessed impacts, identified resilience-building actions, or developed resilience plans to guide future resilience efforts