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Hidden Contracts
Get PDFTransparency is a promising means for enhancing democratic values, countering corruption, and reducing power abuse. Nonetheless, the potential of transparency in the domain of consumer contracts is untapped. This Article suggests utilizing the power of transparency to increase consumer access to justice, better distribute technological gains between businesses and consumers, and deter sellers from breaching their consumer contracts while exploiting consumers’ inferior position.
In doing so, this Article focuses on what we dub “Hidden Contracts.” Part I conceptualizes the idea of hidden contracts. It first defines hidden contracts as consumer form contracts that firms unilaterally modify and subsequently remove from the public sphere, despite being binding on consumers. Thereafter, the Article delineates the considerable social costs of hidden contracts.
Given these social costs, Part II discusses our empirical study of hidden contracts. The results of this study indicate that leading firms that supply goods and services to billions of online consumers worldwide routinely employ hidden contracts to the detriment of consumers and society. Against this background, Part III proposes introducing a novel contract transparency duty. It further explains how to design this duty to counter firms’ incentive to employ hidden contracts. Next, Part IV tackles key objections to our proposal. Concluding remarks follow
Twenty-First Century Split: Partisan, Racial, and Gender Differences in Circuit Judges Following Earlier Opinions
Get PDFJudges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is both surprising and nuanced. We have two major findings. First, over the forty-four-year span we studied, we find growing partisan differences in positive treatments of earlier cases. The partisan differences are largest for treatments in ideologically salient categories of cases. Interestingly, the partisan differences arise more for treatments of opinions written by Democratic appointees than for opinions written by Republican appointees, which we think is best explained by an accelerating movement among Republican appointees in a conservative direction compared to a steady move among Democratic appointees in a liberal direction. The increase in partisan differences is not a function of presidential cohorts or age cohorts. Second, there are intraparty racial and gender differences in positive treatments of past cases, and these differences are similar to the partisan differences. Within each party, Black and White judges differ in their treatments of opinions authored by Black co-partisans, Hispanic and White judges differ in their treatments of opinions authored by Hispanic co-partisans, and female and male judges differ in their treatments of opinions authored by female co-partisans. Similar to the partisan divergence noted above, we also find that some of these differences increase in magnitude over time — with particularly notable increases in the Black-White Democratic differences, Hispanic-White Republican differences, and female-male Republican differences. Notably, the racial and gender differences we find in positive Shepard’s treatments are not mirrored in most studies of racial and gender differences in judicial behavior, which focus on merits votes and include a much smaller number of cases.
These results defy easy explanation. They do not support the proposition that party, race, and gender have always played a pervasive role for judges. Instead, our results provide evidence of increasing partisan, racial, and gender polarization among judges in recent years. For reasons we explain in the body of this Article, the partisan, racial, and gender differences we find appear to be a function of political ideology. Further, because the racial and gender differences are within parties, our results indicate that not only partisan differences but also intraparty racial and gender ideological differences have risen in recent years (particularly for Republican judges).
Our data thus reveal polarization among circuit judges and, as a result, in their shaping of the law. Many groups in the United States have become more ideologically polarized in recent years. Our data indicate that judges are one of them
Bill of Rights Nondelegation
Get PDFSpeculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly — and rigorously — applying the doctrine in a different context: In litigation concerning various provisions of the Bill of Rights, the Court has enforced a nondelegation principle to constrain the delegation of unfettered discretion to the executive.
The uncovering of a Bill of Rights nondelegation doctrine reveals that, contrary to popular belief, the Court has been actively applying some form of nondelegation for many years. Recognizing a Bill of Rights nondelegation doctrine could have important implications for Bill of Rights jurisprudence writ large. Further, understanding the “Bill of Rights nondelegation doctrine” as a coherent line of cases separate from what this Article calls the “Article I nondelegation doctrine” helps to clarify the connection that some have pointed out between the nondelegation principle and certain parts of the Bill of Rights. From the First and Second Amendments to the Fourth and Fifth Amendments, the Bill of Rights nondelegation doctrine prevents the delegation of unfettered discretion when enumerated rights are at stake
The Right to Be Proselytized Under International Law
Get PDFLegal analyses of proselytism have tended to focus on the rights of the proselytizer and on the right of the target of proselytism, or “proselytizee,” to be free from such “interference.” However, such analyses do not fully account for all rights involved in proselytism. When people are prevented from being proselytized, such as by law or by persecution, an important consequence is that they are cut off from a significant source of information on and mechanism for exploring and joining other religions. Despite stigmatizations of proselytism, many people regularly accept it and learn about and join other faiths through it. Cutting people off from proselytism thus impedes their ability to receive information, exercise their capacities of reason and conscience, and order their lives as they choose. These results harm people’s human dignity, to which the capacities of reason and conscience are central, and human rights, such as the right to have or to adopt a religion or belief of one’s choice. These consequences suggest people have an international legal right to be proselytized. This Note explores whether such a right exists in international law and shows that several rights guaranteed by the ICCPR together establish and support the right to be proselytized. These rights include the rights to proselytize, adopt a religion or belief free of coercion, freedom of opinion, freedom of expression, freedom of assembly, and freedom from religious discrimination. Like some of the rights that constitute it, the right to be proselytized can be validly limited in certain circumstances. Considering and respecting the right to be proselytized can make a meaningful, positive difference in legal analyses and decisions, including by more fully respecting proselytizees’ human dignity