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Double Standards in UN Political Bodies: Is Impartiality Possible?
Full text linkThe decisions of the UN’s political bodies would seem to represent the epitome of claims of double standards in the enforcement of international law. For even if we can accept that the members of the Security Council or the Human Rights Council (HRC) will choose to bring some situations to the attention of those bodies while leaving others off the agenda, or to pass some resolutions and reject others, such decisions seem quite suspect if we view those organizations as not merely making policy but enforcing international law. International lawyers have long identified this dilemma over enforcement: is it better to entrust the enforcement to international judges (e.g., the ICJ) or experts (e.g., the treaty bodies) who are more likely to treat like cases alike, but who lack the power to enforce their rulings (or whose decisions are not binding anyway); or to political bodies, who are more likely to pick favorites but whose rulings carry more bite vis-a-vis the target, either reputationally (because it comes from fellow states) or materially? Scholarly divides over this question are profound, with fans of international courts pitched against skeptics (like me) of judicial romanticism. My students love to debate this question because it has no obvious answer unless one thinks that the solution is a fantasy world in which states on the receiving end of criticism from expert bodies just start complying
Disappearing Data at the U.S. Federal Government
Full text linkHealth data hosted by the U.S. federal government have been disappearing. According to our analysis, between January 21 and February 11, 2025, the Centers for Disease Control and Prevention (CDC) removed 203 datasets (13% of its online datasets, a reduction from 1519 to 1316). The situation is dynamic; various datasets have been removed, restored, manipulated, or not posted as planned
\u3cem\u3eYounger\u3c/em\u3e and Older Abstention
No full textWhen victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child welfare proceedings.
Given the federal judiciary’s increased emphasis on tradition in interpreting contemporary equitable remedies, this Article contrasts these novel expansions with historical equitable practices. While the doctrine of criminal abstention is now known as “Younger abstention” after the 1971 case Younger v. Harris, criminal abstention and its core exceptions originate from centuries-old equitable proceedings in both the United States and England. Historically, courts of equity intervened in ongoing criminal proceedings when those proceedings were inadequate to redress harm or irreparable harm would otherwise result. Similarly, in the decades after the Fourteenth Amendment, federal courts balanced federal constitutional rights against state interests in ways that accounted for a federal judicial role in ending great irreparable harm. The most recent lower court expansions of the doctrine are in severe tension with that tradition
Why Financial Crises Recur
No full textFinancial crises have occurred around the world for over two centuries. These crises have been so costly and frequent that one wonders why governments cannot prevent them from recurring despite repeated, wide-ranging attempts at legislation, regulation, supervision, and enforcement.
In this article, we argue that lawmakers repeatedly act in two ways that may appear to be intuitive but are actually detrimental to system-wide stability. First, lawmakers fail to understand that “banks”—both traditional banks and shadow banks—produce runnable short-term debt, unlike other firms in the economy. To produce short-term debt, banks operate with opacity. Yet a regulatory framework based on secrecy is diametrically opposed to our dominant market-based paradigm that values transparency above all else. Second, lawmakers fail to understand the difference between a “systemic crisis” and the failure of individual banks. Aiming to enhance the safety and soundness of individual banks is not sufficient to produce system-wide stability. Committing these two errors leads to systemic risk and a recurrence of crises.
Notably, the times when lawmakers in the United States have succeeded in reducing systemic risk were by luck, not deliberate planning. In 1863, when Congress sought to finance the Civil War, it created a system of national banks and a uniform currency that inadvertently led to the creation of safer banks for a time. Similarly, in 1933, the Roosevelt Administration begrudgingly passed deposit insurance under political pressure, which led to decades of stability in the banking sector. Yet deliberate attempts at improving financial stability—including the so-called “GENIUS Act” to regulate stable coins—have fallen short because of the errors identified above. If lawmakers can correct these two errors, then modern economies may experience a long period of growth without crises
Third-Party Accommodations
No full textDoes disability rights law impose an obligation on employers, schools, and other places of public accommodation to control the behavior of coworkers, students, or other third parties to accommodate an individual with disabilities? This Article examines that unexplored legal question and shows that the law frequently fails to protect people with disabilities from the choices and behaviors of third parties. Judges often consider these major barriers to access beyond the reach of the Americans with Disabilities Act’s reasonable accommodation mandate. This Article argues that this problem results from improperly imposing the privity paradigm, a doctrine that limits the inquiry about the reasonableness of an accommodation relative to the relationship between the first party (the disabled individual) and the second party (the employer or other entity covered by the Americans with Disabilities Act). Using disability studies, legal theory, and political economy analysis, this Article shows how a narrow interpretation of the reasonable accommodation mandate has failed to adapt to our modern understanding of disability as a complex interaction between the impairment and the social environment. To address the issue, this Article introduces a new theory of third-party accommodations, which would require others to alter or cease behaviors to accommodate an individual with disabilities. This Article then suggests a normative framework that courts can use to analyze cases involving requests for third-party accommodations, including the factors that judges should balance to determine the reasonableness of a request. In highlighting the need to move beyond a constricted interpretation of reasonable accommodation, this Article imagines a new horizon for disability justice
Solving the Proxy Advisory Problem: Minimum Regulation for Maximum Competition
No full textThe proxy advisory industry is often criticized on two primary accounts: the lack of accountability for informational accuracy in the development of voting standards and the conflicts of interest faced by advisors when they make proxy voting recommendations on issuers to which they have previously provided corporate governance consulting services. The industry has also been accused of having “anemic” levels of competition, since only two advisors command a vast majority of the market share. While much has been written about curtailing the prevalence and effects of proxy advisor conflicts of interest through increased regulation, the regulatory route toward increased informational accuracy is less clear. This Article proposes a single regulatory framework that aims to tackle the industry’s informational accuracy issue by increasing competition.
To set the stage, this Article briefly discusses the rise of the industry as well as its modern structure before describing historical factors and barriers to entry that have helped perpetuate the industry’s consolidation. This Article then examines academic studies concerning the effects of competition in the proxy advisory industry before describing considerations necessary for effective regulation due to the industry’s unique nuances and extensive entry barriers. Lastly, it proposes a novel regulatory structure aimed at increasing informational accuracy in proxy advisor recommendations by incentivizing competition while keeping regulatory costs to a minimum
Jerking the Rug Out from Under a Trade Secret Licensee: Is Transfer of the Patent a Remedy?
No full textPredominantly state trade secret law and exclusively federal patent law enjoy a sometimes-uneasy coexistence. Inventions almost always are secret until and unless they are patented; publicizing them for too long will negate the availability of a patent. Misappropriation of trade secrets often is accompanied by application for a patent on the same subject matter. This commonly occurs when an employee gains access to his employer’s trade secrets, quits, and then applies for a patent on them in his own name, maybe after going to work for a competitor of the original employer. It is also conceivable that the owner of a trade secret licenses it to another and then proceeds to get a patent on it, making the license worthless, because the publication of the patent and its application extinguish the trade secret. When that happens, what happens to the business opportunities that the licensee has developed by using the trade secrets? Can he convert his now useless trade secret license into a license to practice the patent? If he can protect his own practice of the patent, can he also exclude others?
Answering these questions requires nuanced understanding and careful application of complex boundaries between state and federal law; rights, privileges, and powers comprising the bundle of interests that define intellectual property; and appreciation of the remedies available in law and equity for misappropriation and infringement in light of their historical development
Next in Line: Addressing the Constitutional and Policy Problems with the Current Presidential Line of Succession
No full textThe presidential line of succession is a critical component of the United States government, designed to ensure continuity and stability in the executive leadership during crises. This Note examines the current statutory provisions concerning presidential succession to identify constitutional ambiguities and practical challenges that could undermine governmental operations during unforeseen emergencies.
Through a detailed analysis of historical instances, such as the incapacitation scenarios of past presidents and recent threats to government officials, including the COVID-19 pandemic and a rise in political violence, this Note highlights the risks posed by the existing succession framework. The ambiguity primarily revolves around the roles and powers of individuals next in line beyond the Vice President, namely the Speaker of the United States House of Representatives, the President pro tempore of the United States Senate, and the officers of the Cabinet, who may assume presidential duties. Legislative and academic analyses underscore the inconsistencies and gaps in the legal texts that guide these procedures. Ultimately, this Note argues for urgent reforms to clarify these ambiguities, proposing legislative amendments to solidify the succession process and reduce the potential for power vacuums that could lead to constitutional crises. The recommendations aim to align succession practices with contemporary needs for clear and effective leadership transitions amid crisis to ensure national stability and security
Fall 2025 - Advanced Search Strategies
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From Medical Exceptions to Reproductive Freedom
No full textSince the Supreme Court overruled Roe v. Wade in 2022, there has been a significant focus on pregnancy complications. This focus has created some risks. Highlighting medically indicated abortion stories could stigmatize the vast majority of abortion seekers who lack medical reasons for abortion and result in narrow remedies that do nothing to undermine abortion bans. This Article presents a way to convert these risks into an opportunity: to use pregnancy complications as a wedge to challenge abortion bans more generally and make abortion more accessible for everyone. We present a long-term strategy to dismantle abortion bans, using several legal theories surrounding pregnancy complications to show that abortion bans are inherently vague, religiously discriminatory, and arbitrary. We then zoom out and show that pregnancy complication cases reveal that Dobbs itself is unworkable and must be overturned. Though the current Supreme Court is unlikely to adopt the theories we describe, there is already evidence that state and lower federal courts are open to them. Moreover, legal losses have the potential to sway public attitudes by revealing how all abortions are health-saving