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Demystifying Compactness
Full text linkWe explain how to think about and use the open cover definition of compactness through several examples. In particular, we argue that compactness should be thought of as a finiteness condition which is algorithmic in nature
Exploring Parking Functions: Poset and Polytope Perspectives
Full text linkThis paper provides an exploration of parking functions, a classical combinatorial object. We present two viewpoints on their structure and properties through poset of noncrossing partitions and polytopes
Lest We Forget: Covid-19, the Defense Production Act, and Executive Order 13,917
Full text linkDuring his 2024 presidential campaign, Donald Trump claimed that the ongoing conflicts in Ukraine and Gaza would not have occurred had he been reelected in 2020. However, during his first presidency, President Trump faced another significant adversary—the COVID-19 pandemic caused by Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2)—and many contend that Trump’s inadequate response to this viral enemy contributed significantly to his 2020 election loss. Central to the pandemic response was the Defense Production Act, a Cold War–era statute granting broad emergency powers.
This Article argues that the Trump administration fundamentally misunderstood the Defense Production Act, initially by failing to invoke it promptly to secure critical medical supplies, and later by misapplying it via Executive Order 13,917 to compel meat-processing operations in a manner that ultimately prioritized corporate profits over worker safety. With the notable exception of Operation Warp Speed and a few less noteworthy instances, the Trump administration’s use of the Defense Production Act largely failed to safeguard the nation’s public health and harmed vulnerable workers in the meatpacking industry.
Compounding these failures, the meatpacking industry, USDA, and OSHA also largely failed to meaningfully protect these workers, many of whom are members of communities suffering the impacts of marginalization. Meat-processing workers labored in the shadows of public concern under conditions that paralleled the industry’s treatment of animals—both denied meaningful protection, both ultimately treated as disposable. In either case, the underlying assumption seems clear: some lives matter less than money.
This Article ultimately serves as a resource for policymakers and attorneys, highlighting how the Defense Production Act, when judiciously deployed, can effectively safeguard public health, protect worker rights, and affirm the nation’s commitment to valuing human life.
 
When the Executive Accidentally Supported the Movement: Participatory Democracy and the Rise of the Non-Profit Industrial Complex
Full text linkThe critique of the non-profit industrial complex has spread from movement groups and movement-aligned scholars in fields like race, gender, and ethnic studies to influence scholars in other fields, including legal scholars. Despite this growing influence, studies of the non-profit industrial complex devote almost no attention to the importance of the Community Action Program (“CAP”), part of the Economic Opportunity Act of 1964, to its development. When CAP was created, the Johnson Administration sought to capitalize on the rhetoric of “participatory democracy” at a moment when that phrase had great cultural cachet but a deeply ambiguous meaning. The implementation of CAP exposed a rift between the Administration’s expectations of limited participation and the hopes of activists in many low-income communities of color, who had been inspired by a collectivist approach to participatory democracy, one that had grown out of John Dewey, the Christian pacifist movement, and the Highlander Folk School to be embraced by the civil rights movement of the early 1960s. As low-income communities of color began to utilize CAP as a tool to support grassroots efforts for social change, the Johnson Administration and Congress developed new restrictions on CAP to rein in what it accidentally unleashed without suffering the political costs of repealing one of the central components of the War on Poverty just months after it had launched. The tactics it developed—stripping funding, influencing board selection, new emphases on quantitative outcomes, reporting, and eligibility for services, and splitting funding for community organizing from funding for service provision—would become core tactics of the non-profit industrial complex
Sabotaging Scrutiny: SFFA’s Racialized Distortion of Suspect Classification
Full text linkThis Note explores how the Supreme Court’s opinion in Students for Fair Admissions (SFFA) has changed the functional effect of strict scrutiny in affirmative action challenges, subsequently warped suspect classification under the Fourteenth Amendment. It argues that the Court’s strict scrutiny analysis in SFFA, which ignores the dynamic realities of race in America and gives doctrinal credence to meritocracy in higher education, handicaps non-white litigants’ access to the Fourteenth Amendment’s Equal Protection Clause while widening the availability of the Fourteenth Amendment suspect for white litigants. By parsing whiteness’ evolution in race related jurisprudence before and after suspect classification became canonical doctrinally, dissecting the SFFA opinion’s approach to narrow tailoring and compelling interests, and presenting the lower courts’ utilization of post-SFFA strict scrutiny’s edit in employment cases, the Note highlights the court’s strategy in reconstructing strict scrutiny and offers the Thirteenth Amendment as a solution to the foreclosure of the Fourteenth Amendment for non-white litigants post-SFFA.
Contracting the Void: Land, Capital, and Sequestration
Full text linkCarbon capture and sequestration (CCS) is poised to play a critical role in efforts to mitigate climate change. As CCS projects proliferate across the United States, they are fundamentally recasting the nature of certain property rights in the subsurface. This has given rise to novel legal and economic questions regarding the acquisition and valuation of pore space for long-term carbon dioxide (CO2) storage. This article examines the emerging legal frameworks and market dynamics for transactions of pore space for geologic carbon sequestration, contributing both a theoretical and uniquely empirical perspective on early transactional models and impacts to the long-term development of the CCS industry.
This article offers the first empirical assessment of compensation structures in pore space contracts. Analyzing structures from publicly available agreements, it reveals how project developers and landowners are allocating risk and value at different stages of project development. This illustrates how uncertainties associated with the extent of the subsurface resource, revenue sources, and the timing of development impact deal structure. This has led to emerging trends such as phased bonus payments, dynamic rental structures, and volumetric compensation mechanisms. The structure of these contracts incorporates aspects of other depletable resource contracts, such as oil and gas leases.
Carbon sequestration, however, requires greater commonality of pore space resources to assure adequate storage capacity and manage environmental and containment risks. This can require tremendous amounts of land and coordinated operations within the project area. These differences, along with the vital role of carbon removal to climate mitigation, provide an opportunity to critically explore the choice to develop carbon sequestration projects using the same models adopted for oil and gas. Land acquisition adds cost and complexity to these projects. Moreover, landowners may defer leasing until markets are more developed or subsurface resources are more fully characterized, increasing the ultimate cost of climate mitigation. While states have endeavored to reduce transactions costs through legislation, the combination of property law and political choices regarding the development of CCS projects may ultimately impede the timely achievement of climate mitigation as a public good
With Whom Is Your Issue?: Use of Investor Sophistication in Defining the Scope of Seller Liability Under § 12(a)(2) of the Securities Act of 1933: Zachary Becker
Full text linkThe rise of social media in the last two decades has given retail investors unprecedented information about and access to financial markets. But the introduction of new marketing strategies for financial products has also introduced new challenges for financial regulators. Regulatory agencies and judicial bodies alike are tasked with conforming the investor protection and market efficiency statutes of the 1930s to contemporary problems. Responses to the new paradigm of social media have diverged, though. One such divergence is the standard applied for Section 12(a)(2) liability under the Securities Act of 1933. Some circuit courts rely on traditional precedents that require direct solicitation of the investor as set forth in Capri v. Murphy and Craftmatic Securities Litigation v. Kraftsow. Meanwhile others have responded that mass communications like social media can give rise to Section 12(a)(2) liability. Most recently, the Ninth Circuit adopted this approach in Pino v. Cardone Capital LLC. This circuit split not only increases uncertainty amongst issuers of securities about the scope of potential liability. It also encourages forum shopping by plaintiffs seeking courts with broader and more favorable liability schemes. This Note proposes a solution to the circuit split in the form of an investor sophistication standard
Deslandes v. McDonald's: No-Poach Agreements and the Rule of Reason: Daniel Sweat
Full text linkIn 2023, Judge Easterbrook held that an antitrust plaintiff’s claim can be evaluated under the rule of reason despite an ancillary restraints defense from the defendant. Deslandes v. McDonald’s thereby directly contradicted Polk Bros., Inc. v. Forest City Enters., which for decades stood for precisely the opposite proposition. In an environment of increased scrutiny from antitrust enforcers and uncertainty about the future of antitrust labor law, Deslandes only further muddied the waters. Clarity, however, lies in an analysis of the history and purposes underlying the ancillary restraints doctrine.
This Note argues that ancillary no-poach agreements—those between purchasers in a labor market that are reasonably necessary to accomplish the purpose of a broader, non-pretextual agreement—are properly analyzed under the rule of reason. Part I examines the standards of antitrust adjudication—per se, rule of reason, and quick look—and the historical development of the ancillary restraints doctrine. Part II catalogues the regulatory actions of state and federal antitrust enforcers who have applied increased scrutiny to labor market restraints in recent years. Against that backdrop, Part II then explains the arguments at play in Deslandes v. McDonald’s and why Easterbrook’s ruling in that case poses a problem for antitrust practitioners. Part III critiques Easterbrook’s ruling by arguing that ancillary restraints like those in Deslandes warrant analysis under the rule of reason, not the per se standard
Pet Euthanasia and Human Euthanasia
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Abstract
A criticism of assisted death is that it’s contrary to the Hippocratic Oath. This opposition to assisted death assumes that death is harmful to the person who dies. In this paper, I argue that the fact that we possess a rational nature is insufficient to preclude the possibility that death is in our best interest in the same way it is for our pets. I specifically respond to the objection posed by Leon Kass and Thomas Cavanaugh, who resist the comparison between pet euthanasia and human euthanasia. I show that their argument, that humans transcend suffering in a way that animals cannot, ultimately fails.
Introduction
A common criticism of assisted suicide and euthanasia, together “assisted death,” is that they violate the moral prohibition against intentionally killing innocent people. This prohibition often stems from the belief that death necessarily harms the person who dies, which is an idea found in numerous contexts, including discussions about the intrinsic goodness of life as well as the Hippocratic Oath that commands doctors to give no deadly drug and do no harm.[1] While the prohibition is appealing to many, it makes sense only if we assume that death is necessarily harmful to the person who dies, for if death were in someone’s best interest, then that prohibition would state that it would be wrong to do something beneficial, which is implausible.[2] Accordingly, if it is true that death can be in someone’s best interest, then invoking a prohibition against intentionally killing innocents on the basis of doing no harm would not constitute a strong objection to assisted death.[3]
This paper uses the analogy of pet euthanasia to critique the claim that death is necessarily bad for us because our rational nature allows us to transcend our suffering,[4] arguing that the propositions that give us reason to think that death can be good for our pets also apply to human beings. Moreover, the concern that we cannot predict future quality of life and therefore cannot say for certain that death is ever in someone’s best interest also applies in the case of our pets. Ultimately, the pet-human euthanasia analogy gives one reason to think that since pet euthanasia is justified, human euthanasia is justified too.
Pet Euthanasia
It is a commonly accepted practice to euthanize our pets because we do not want them to continue to suffer.[5] This means that we often euthanize our pets for their sake. If this is true, which I assume it is, then this practice assumes that death can be in our pets’ best interest.
There are a number of basic propositions that, when taken together, support this belief.
Our pets’ lives can go better or worse, meaning that their well-being and ill-being can fluctuate.
Their amount of future ill-being can outweigh their amount of future well-being.[6]
It is prudentially better for our pets not to exist if the alternative is for them to have greater future ill-being than future well-being.[7]
Death is characterized by nonexistence.
My position is that our rational nature does not render any of the above basic propositions inapplicable to human beings. Like many philosophers, I assert that what mainly distinguishes us from the rest of the animal kingdom is our rational nature.[8] Accordingly, if there is reason to think death cannot be in our best interest, like it can be for our pets, it is likely grounded in the fact that we are the rational animal.[9]
With that in mind, I propose that 1 and 4 are not the ones under debate in the pet-human euthanasia analogy. Both sides generally agree that human lives can go better or worse, and that death is characterized by nonexistence. This leaves propositions 2 and 3. So now the question is whether there is good reason to think that our rational nature renders 2 or 3 inapplicable to human beings. I do not believe there is.
Regarding 2, the fact that we have theoretical and practical rationality, or whatever other trait that characterizes us, does not prevent us from having greater future ill-being than future well-being. Indeed, it seems obviously true that there are periods of our lives that can be dominated by more suffering, and there is no reason to think that our rational nature would make this imbalance impossible for the future of any particular individual. Furthermore, any plausible account of well-being must allow for the possible experience of overall suffering — that is, a greater amount of ill-being than well-being; thus, we need not be committed to any particular theory.
Our rational nature would also not preclude the applicability of 3, which states that nonexistence is prudentially better than having greater future ill-being than well-being. Yes, we can attain truth, we have excellent means-ends reasoning, we are self-conscious, and we are moral agents, but these are not the right kinds of reasons to show that 3 is inapplicable to humans. What would be needed is a disproof of the position that death is good for us when it deprives us of overall future ill-being (deprivationism[10]), and specifically, a disproof of deprivationism for humans that simultaneously allows it to be true for nonhuman animals.
The Transcendence of Suffering
Some who push back against the pet-human euthanasia comparison emphasize our unique ability to transcend our suffering. In essence, they argue that due to our rational nature, we can find meaning, draw insights, and even grow spiritually when faced with significant obstacles, whereas animals cannot have any of these goods given their limited natures.[11] The argument of transcendence relates to well-being in the following way: Transcending our suffering amounts to attaining higher goods that result from our suffering, and attaining these higher goods means that suffering is not a net cost to our overall well-being. The transcendence claim is best understood as a challenge to proposition 2 (which is about weighing ill-being against well-being) in the case of humans.
In response, it is true that humans can transcend suffering in a way that pets cannot; our rational nature does enable us to attain higher goods. And, indeed, humans voluntarily do many painful things because we find them to be meaningful — e.g., run marathons.[12] However, for a few reasons, the fact that we are able to does not mean that we will.
First, while our rationality enables us to attain higher goods, it also enables us to suffer greater bads, so it is not clear that the former outweighs the latter. Our pets, on the other hand, presumably cannot suffer existentially.[13] They are presumably unable to believe that their life was wasted or that it had no meaning. They presumably do not feel toxic shame or deep regret. Moreover, while we do have access to medical care, and perhaps better medical care than our pets have, existential suffering persists. In fact, the primary reasons people seek an assisted death (in Oregon and Canada) are loss of autonomy and inability to engage in activities that make life meaningful to them. And most who seek it already receive palliative/hospice care.[14]
Second, not all human beings can experience those higher goods due to their age and/or cognitive decline. Infants, for instance, presumably do not possess the required cognitive capacities to find meaning, draw insights, or grow spiritually. Therefore, for these groups who suffer but will not improve, they will likely experience more overall future ill-being.
And third, even in cases where a human being is attaining higher goods from their suffering, it does not follow that they will continue to gain if they continue to suffer. Suppose there is a cancer patient with six months to live. It seems unlikely that they must benefit overall from dying in six months rather than in five. On the contrary, it seems likely or reasonably expected that, at some point, their quality of life could be overall negative.
For these reasons, our ability to transcend our suffering does not disprove proposition 2, which says future ill-being can outweigh future well-being, in the case of humans.
The transcendence claim is also no challenge to proposition 3, which states that nonexistence is prudentially better than a future with greater overall ill-being, in the case of humans. In fact, it is consistent with it. Assuming the transcendence claim is true, i.e., that humans can attain higher goods despite (or even because of) our suffering due to our rational nature, it does not follow that nonexistence is worse than continued living. Actually, the transcendence claim does not deny the truth value of any comparison between nonexistence and quality of life; it merely speaks to the fact that suffering may contribute to overall well-being.
To elaborate, proposition 3 for humans can be reformulated as a conditional. A simple version of it would say, “If a person will experience greater overall future ill-being, then nonexistence is prudentially better for them.” The transcendence claim aims to address the antecedent. It suggests that transcending suffering contributes to overall well-being, which ultimately outweighs the ill-being the person experiences. It does not address the conditional itself. Therefore, one could accept the conditional but deny that the antecedent ever obtains. So, the transcendence claim is not a challenge to proposition 3 in the case of humans. Overall, the fact that we can transcend our suffering does not render propositions 2 or 3 inapplicable to human beings.
Ignorance
An opponent may accept the possibility of death being in our best interest but still support a prohibition against assisted death because we cannot predict a person’s future quality of life. Since we cannot know if any particular person’s future ill-being will outweigh their future well-being, we should apply a precautionary principle that states that we should not intentionally end the life of an innocent human being. Such an argument grants the claim that ill-being may outweigh well-being but justifies the prohibition of assisted death on the grounds of uncertainty.
In response, while it is true that no one can predict the future, this is also true of our pets’ futures, and yet, that does not justify banning pet euthanasia. To elaborate, we can only guess as to whether death is good for our pets, because we cannot know what it is like for our pets to suffer. What is it like for a dog to have dementia? Can they experience more overall well-being simply by being held and caressed despite suffering from that condition? We do not know. We may have reasonable expectations, but we do not know. It is conceptually and practically difficult to measure well-being in another species, which brings us to an important point.
We can communicate with people who seek assisted death. We cannot communicate with dogs and cats, at least not to the degree that, or in the same manner as, we can with humans. This gives us reason to think that we can more reliably guess some people’s future well-being/ill-being state than our pets’ future well-being/ill-being state. A person diagnosed with terminal cancer can tell us what they value and how their illness is affecting their quality of life, which, to some extent, can forecast their future quality of life. They can tell us how they want to live and how they want to die. Nonhuman animals cannot do any of these things. Essentially, we can have better knowledge and data about the suffering of another human being. So, interestingly, the difference between humans and other animals that opponents highlight to justify prohibiting euthanasia actually works against them here.
Conclusion
Some opponents of the pet-human euthanasia analogy argue that death cannot be good for us because our rational nature enables us to transcend our suffering. However, despite this ability, the basic propositions that support the belief that death can be good for our pets also apply to human beings. This gives good reason to think that death can be good for us too. Moreover, some could argue that we should still prohibit assisted death because of our inability to predict future quality of life. While it is true that future ill-being is often not precisely predictable for any particular person, this is also true in the case of our pets, and yet, that ignorance has never been a sufficient justification to ban pet euthanasia. Consistency demands that this point is not a sufficient justification to ban it for humans either.
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[1] Finnis believes that life is a basic human good. John Finnis, “A Philosophical Case Against Euthanasia,” in Euthanasia Examined: Ethical, Clinical, and Legal Perspectives, ed. John Keown (Cambridge: Cambridge University Press, 1995), 23-35. Cavanaugh explicitly states that giving a patient a lethal drug is a harm. Thomas A. Cavanaugh, “Why the Hippocratic Oath Prohibits Physician-Assisted Suicide,” Public Discourse, November 20, 2019, https://www.thepublicdiscourse.com/2019/11/57243/ . While not contained in the original Oath, the maxim “first, do no harm” is also raised in the same context for the same reason. See Andreas Fontalis, Efthymia Prousali, and Kunal Kulkarni, “Euthanasia and assisted dying: what is the current position and what are the key arguments informing the debate?” Journal of the Royal Society of Medicine 111, no. 11 (2018): 407–413, https://doi.org/10.1177/0141076818803452
[2] There has been significant work by deprivationists and Epicureans on the prudential effect of death on the deceased. Deprivationists argue that death can be good or bad for you, while Epicureans argue that it cannot. For a good review of the debate, see Travis Timmerman, “A Dilemma for Epicureanism,” Philosophical Studies 176, no. 1 (2019): 241-257, https://doi.org/10.1007/s11098-017-1014-2, and Steven Luper, “Death,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Metaphysics Research Lab, Stanford University, 2021), https://plato.stanford.edu/archives/fall2021/entries/death/;
[3] I use “best interest,” “good for,” and “prudentially better” to refer to something that leads to a higher total amount of well-being. So, saying that x is in someone’s best interest, or is good for someone, or is prudentially better, means that x leads to a higher total amount of well-being for that person.
[4] Others have made this comparison. See Jessica Pierce, “Human and Animal Euthanasia: Dare to Compare?,” Psychology Today, November 29, 2011, https://www.psychologytoday.com/us/blog/all-dogs-go-heaven/201111/human-and-animal-euthanasia-dare-compare; Julian Baggini, “Euthanasia for Animals: What Can It Teach Us about Assisted Suicide in Humans?,” Independent, July 21, 2015, https://www.independent.co.uk/life-style/health-and-families/features/euthanasia-for-animals-what-can-it-teach-us-about-assisted-suicide-in-humans-10405840.html; Mark S. Komrad and Oliver Glass, “Euthanasia in Animals and Humans: Distinctions to Consider,” Psychiatric Times, July 29, 2024, https://www.psychiatrictimes.com/view/euthanasia-in-animals-and-humans-distinctions-to-consider; John Shand, “Putting Animals & Humans To Sleep,” Philosophy Now, 2018, https://philosophynow.org/issues/129/Putting_Animals_and_Humans_To_Sleep.
[5] Any reference to pets should be understood as a reference to typical pets—that is, those animals that can have subjective experiences.
[6] The argument I present does not require a simple mathematical approach to measuring ill-being and well-being. Rough estimates are sufficient and are, in fact, what we use to determine when to euthanize our pets.
[7] “Greater” here refers to both quantity and/or quality. I do not provide a formula for how to weigh the two. Importantly, again, we do not require such a formula when we judge that it is better for our pets not to exist.
[8] There are other potentially morally relevant differences between humans and pets, but this paper focuses on rationality as a key distinguishing factor. And more specifically, the focus is our ability to transcend our suffering that comes from our rational nature.
[9] Note that I do not list these propositions to show how the justifiability of pet euthanasia automatically transfers over to the human case; rather, my argument is about well-being. I say this because some who push back against the comparison between pets and humans will undoubtedly say that human life is more valuable than animal life, and so the moral permissibility of euthanizing animals does not transfer over to euthanizing human beings. While that may be true, it is a separate argument. We can consistently hold the following two beliefs: (1) human beings are more valuable than nonhuman animals, and (2) death can be good for us too. My argument pertains specifically to the latter.
[10] See Nagel for an explanation of why death can be bad for us. Thomas Nagel, “Death,” Noûs 4, no. 1 (1970): 73–80. Deprivationists also believe that death can be good for you if it deprives you of future ill-being. L. W. Sumner, Physician-Assisted Death: What Everyone Needs to Know (Oxford University Press, 2017), 11–12.
[11] Leon R. Kass, “‘I Will Give No Deadly Drug’: Why Doctors Must Not Kill,” in The Case Against Assisted Suicide: For the Right to End-of-Life Care, ed. Kathleen Foley and Herbert Hendin (Baltimore, Maryland: The John Hopkins University Press, 2002), 38; Thomas A. Cavanaugh, “Dignity, Pet-Euthanasia and Person Euthanasia,” in G.E.M. Anscombe and Human Dignity, ed. John Mizzoni (Aston, Pennsylvania: Neumann University Press, 2016), 117–42.
[12] Paul Bloom, The Sweet Spot: Suffering, Pleasure and the Key to a Good Life (London: The Bodley Head, 2021)
[13] To be clear, existential suffering does not have to be quantifiable in order for it to be a greater bad, just like meaning does not have to be quantifiable in order for it to be a higher good.
[14] Oregon Health Authority, Oregon Death with Dignity Act: Data Summary, 2024; Health Canada, Fifth Annual Report on Medical Assistance in Dying in Canada 2023, 2024.
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Acknowledgement: I would like to thank Benjamin Parviz, Eric Mathison, and the anonymous reviewers for their helpful feedback