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The Public and Its Problems: How the EU\u27s Capital Market Union Defines the Bounds of Legitimate Knowledge and Redraws the Boundaries of (Public) Authority
Get PDFRecent years have seen increasing theoretical and practical attempts to come to terms with the strains on public authority at the level of transnational regulation and governance. For the most part, these have followed what could be called a strategy of transposition, seeking to install functional equivalents to familiar forms of nation-state or Westphalian public authority. While useful for some analytical purposes, the validity of this strategy depends on the nature of public authority remaining unchanged: the same \u27function\u27 is now fulfilled by somebody else. In this article, we argue, in contrast, that the very form of public authority has changed. We propose to rethink authority in line with current social-theoretical and sociological insights into the ways in which the public presupposes, and public authority depends on prior forms of social order and coordination. We complement our theoretical argument about the consequences of failing to account for these entanglements between knowledge, expertise, and public authority with a short case study of the European Union\u27s recent project of constructing a Capital Market Union in the Eurozone
A Few Bad Apples : How the Narrative of Isolated Misconduct Distorts Civil Rights Doctrine
Get PDFIn Parts I and II, I examine precedents involving the two broad topics with which this Essay began: policing and race, respectively. The narrative is perhaps more familiar in the policing context. Attorney General Jeff Sessions articulated it succinctly in a March 2017 memo ordering the reevaluation of all consent decrees the Justice Department had entered with police departments because “[t]he misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.”4 The narrative applies with respect to race, as well, although it comes in different forms: the ideal of color blindness, the notion that we are living in a nearly post-racial society, the feeling that we would finally get past our racial history if we’d simply stop obsessing about it. After all, we hear, slavery ended 150 years ago, whites and blacks drink from the same water fountains, and the voters twice elected a black president. In this worldview, racial discrimination is cabined to the deplorable acts of a few retrograde individuals.
When the Few Bad Apples narrative has been ascendant—as I believe it is now—it has entailed the contraction of substantive rights and the erection of procedural barriers to redressing constitutional wrongs. The narrative has not always prevailed, however. At times, a majority of the Supreme Court has identified systemic injustice and reoriented legal doctrine to address it.
The narrative is constantly being contested, sometimes among the Justices themselves, more often in the arena of public debate. Our time is no different. In Part III, I briefly review how the Few Bad Apples narrative is inconsistent with what we know about police misconduct and racial discrimination. In Part IV, I conclude by considering how constitutional doctrine might change if the Few Bad Apples narrative were to lose currency in the area of civil rights, and what reasons there are to think this might or might not come to pass.
The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy
Access to Print, Access to Justice
Get PDFThis article examines the relationship between self-represented litigants and digital literacy and how this particularly vulnerable patron group stands to be harmed by the elimination of print materials from public law libraries. An examination of the literature and a survey help to shed light on this growing problem
Why (and How) States Should Tax the Repatriation
Get PDFThis essay analyzed how U.S. state tax laws should treat the repatriation income generated by the 2017 federal tax legislation
The Future of SALT: A Broader Picture
Get PDFIn this essay, we evaluate the new cap on the state and local tax (SALT) deduction. We argue that the structure of the new cap is not consistent with any theory as to what the SALT deduction is or should be. In canvassing these theories, we further evaluate how future reforms to the SALT deduction might proceed
Wayfair: Substantial Nexus and Undue Burden
Get PDFThis is the first of a series of essays wherein we analyze the U.S. Supreme Court’s decision in South Dakota v. Wayfair. In this essay, we tackle some of the more immediate interpretive questions raised by the Wayfair opinion, such as how a state should approach substantial nexus. As part of our analysis, we offer advice to state governments. Specifically, we recommend that states take note of the features of South Dakota’s law that appealed to the Court and replicate or improve on these to the extent possible. We advise states to consider simplifying their sales tax systems (and potentially joining the Streamlined Sales and Use Tax Agreement if they have not already done so), offering full and adequate reimbursement for compliance costs (especially for smaller vendors), and offering free compliance software and immunity for vendors who properly rely on such software
Annual Report of the Indiana Universiy Maurer School of Law Digital Repository, 2017/18
Get PDFA brief annual report documenting the use and growth of the Indiana University Maurer School of Law, Jerome Hall Law Library, Digital Repository. Includes lists of the most downloaded documents and attached Excel spreadsheets of data
Against Seminal Principles: Ethics, Hubris, and Lessons to Learn from Illicit Inseminations
Get PDFThis short essay addresses the ethical implications of Illicit inseminations, instances of fertility fraud in which a physician uses his own gametes to impregnate a patient
Registration is Fundamental
Get PDFUnder the Copyright Act, copyright owners can file infringement actions only if registration of their copyright claim with the Copyright Office “has been made” or “has been refused.” The United States Supreme Court recently granted certiorari in Fourth Estate v. Wall-Street.com, in order to decide whether registration is “made” when a claimant files a registration application or when the Copyright Office registers the claim.
This article argues that the Court should hold that registration occurs when the Copyright Office registers the claim, in order to ensure that federal courts can benefit from the expertise of the Copyright Office. The Copyright Office recently began publishing the opinions of Copyright Office Review Board. This article uses those administrative opinions to show how the Copyright Office has developed the concepts of originality and creativity in ways that are helpful to the federal courts. It concludes with an Appendix listing the Copyright Office Review Board opinions addressing originality and explaining the basis for each decision
Maintaining Condominiums and Homeowner Associations: How Much of a Priority?
Get PDFThis Article starts, in Part I, by exploring existing lien priorities, including state variations. Part II analyzes the impact of the recent foreclosure crisis, surveying the case law that has arisen in response to that crisis. Part III focuses on the normative analysis, explaining why legislatures should accord lien priority to associations. Part IV addresses implementation issues