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The Potential Power of CEDAW in America\u27s Post-Roe Abortion Debate Outside of its Formal Mechanisms
Get PDFCan the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw
Get PDFThe nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful of Excessive Fines Clause cases but has left a great many questions about the Clause’s reach unanswered. Lower courts are now regularly grappling with these open questions, giving rise to an ever-growing body of caselaw. This Article offers the first systematic survey and evaluation of the caselaw on what counts as a “fine” for Eighth Amendment purposes, particularly in relation to the major categories of LFOs. Based on an assessment of nearly 200 cases, important interjurisdictional variations are apparent. In a few states, expansive understandings of the Clause’s reach are becoming established, which may create a foundation for robust constitutional regulation of LFOs. In most states, though, the precedent is either less favorable or simply still too undeveloped to see a clear trajectory. The Article further identifies seven key, open doctrinal questions that cut across the LFO categories and will likely determine the extent to which the full range of LFOs will be subject to the Clause
Making Whole, Making Better, and Accommodating Resilience
Get PDFThe conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched. This Article undermines this conventional wisdom in three ways. First, it highlights an oft-overlooked point: that sometimes courts may, as a doctrinal matter, award compensatory damages that render plaintiffs materially better off than before. Second, and more surprisingly, the Article shows that awarding material “betterments” is sometimes (and paradoxically) required by the make-whole ideal itself, not merely as a limited exception to it (as some authorities suggest). Third, the Article argues that plaintiffs have compelling but currently unrecognized interests in rebuilding aspects of their lives—including property—better than before the wrongdoings they suffer. Accommodating such “resilience interests” in the law of tort remedies is not only justified but would also systematically require courts to allow plaintiffs to keep material betterments, at least more often than legal practice generally allows. In short, plaintiffs often have compelling reasons to “build back better.” Courts can and should allow them to do so without necessarily abandoning the aim of making them whole. Indeed, failing to recognize these reasons means that plaintiffs are routinely undercompensated
Throuples and Family Law
Get PDFAs throuples and other forms of polyamorous relationships gain visibility and acceptance, courts will have to confront the legal issues that will likely arise when a throuple forms and when it dissolves. How should courts determine child custody for three equally situated parents? How should courts divide assets among three people who have cohabitated in a marriage-like relationship? This Note describes some of the legal problems throuples are most likely to encounter, especially regarding child custody and division of assets. This Note outlines some of the ideal solutions to these problems, such as forming contracts with the help of an attorney. Lastly, this Note argues that courts should expand family law doctrines for unmarried cohabitants to include throuples as well
Animal Plaintiffs
Get PDFFrom endangered Hawaiian songbirds to dolphins deafened by Navy sonar to a neglected horse named Justice, nonhuman animals increasingly appear as plaintiffs in lawsuits alleging their subjection to extinction, abuse, and other injustices. These cases are far more than mere novelties or publicity stunts; they raise important jurisprudential questions about what it means to be a plaintiff seeking relief. As we learn more about the richness and diversity of nonhuman life, our legal system will have to rethink its exclusions to meet the demands of interspecies justice. Drawing on a diverse body of philosophical, jurisprudential, and scientific scholarship, this Article is the first to offer a comprehensive theory of plaintiffhood and apply it to nonhuman animals. It defends the plaintiffhood of animals by articulating the conceptual foundations of the figure of the plaintiff as an entity who complains about injustice, mourns death, and laments the mistreatment of herself and others. Developments in the study of animal behavior and cognitive ethology have demonstrated these features in animals-- including inequity aversion in monkeys, grief in elephants, and resistance to exploitation amongst many other species. As sentient and plaintive beings, animals are conceptually situated to serve as plaintiffs. In addition to describing the conceptual contours of plaintiffhood, this Article identifies plaintiffhood\u27s jurisprudential requirements and then analyzes whether animals can meet these expectations. Plaintiffs must be legal persons, possess legal rights, have legal capacity (or a representative to defend their interests), and have standing to pursue their claims. Through an engagement with legal theory and case law, this Article argues that animals are legal persons with legal rights that representatives can enforce in cases where animals have suffered the kinds of injuries that confer standing. As such, it concludes that animals are entitled to be plaintiffs in lawsuits. To deny them the ability to enforce their rights in court is unjustly anthropocentric
Platform Unions
Get PDFHow should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete. This Article begins from the premise that platform problems are collective problems and proposes a collective solution: empowering users to organize platform unions. Much like labor unions give employees a say in in their working conditions even when they lack individual bargaining power, platform unions would facilitate collective bargaining over platform policies. They would turn social media “users” into collective participants who have a say in determining platform policies. After making the case for platform unions, the Article turns to implementation, discussing how labor law informs key questions about the design of platform unions
Second, But Not Last: Competition with Positive Spillovers
Get PDFThis paper extends the traditional rent-seeking model to consider contests in which the effects of the contestants’ efforts are externally unproductive (i.e., redistributive) but internally productive (i.e., with positive spillover effects on other contestants). Our results show that when players act sequentially, the presence of positive spillovers on other contestants may reduce, or even reverse, the first-mover’s advantage. A second-mover advantage is very likely to arise. Notably, in contests with multiple players, the second-mover advantage does not unravel into a last-mover advantage. Players want to be second, but not last. The comparative statics analysis shows how the strength of positive spillovers affects contestants’ equilibrium expenditures and payoffs, and aggregate rent dissipation
Destruction, Proportionality, and Sustainability: A Law-and-Economics Analysis
Get PDFThis Paper undertakes a law-and-economics analysis of the remedy of destruction (and, subsidiarily, the related remedies of recall and removal) of products that infringe intellectual property (IP) rights. We begin with a brief survey of international, regional, and domestic law and practice, observing that (1) courts generally are believed to be more likely to order the destruction of copyright- and trademark-infringing goods than of patent-infringing goods, and (2) the frequency with which courts order the destruction of patent-infringing goods varies from one country to another. Our observations lead us to present two principal theses.
The first is that a comparative reluctance to order the destruction of patent-infringing goods, as opposed to copyright- or trademark-infringing goods, would be consistent with economic considerations. From an economic standpoint, destruction can be viewed both as a complement to injunctive relief and as a substitute (albeit an imperfect one) for ongoing monitoring of an infringer’s compliance with the terms of an injunction. The social benefits arising from substituting destruction for monitoring, however, are likely to be lower—on average, and perhaps subject to regional variation—for patent-infringing goods than for products that infringe other IP rights. In addition, although observers have long noted that the private and social costs of destruction provide a rationale for withholding that remedy when it would cause disproportionate harm to the defendant or third parties, these costs may be unusually high in patent cases—particularly that subset of cases in which the risk of patent holdup is substantial. In view of these factors, the social costs of ordering the destruction of patent-infringing goods are likely to outweigh the social benefits in a comparatively broader swath of cases.
Our second thesis can be best understood if we first pose a question: given that courts generally have authority to consider proportionality when deciding whether to order the destruction of infringing goods, why are legislatures and courts (other than in the United States and, to some degree, other common-law countries) so unwilling to consider proportionality when deciding whether to grant injunctive relief? One obvious reason is that a stay or denial of injunctive relief imposes greater costs on the judiciary, insofar as a court that stays or denies an injunction must be prepared to set the terms of an interim or ongoing royalty; in addition, a stay or denial may introduce additional error costs to the extent courts impose over- or under-compensatory royalties. We propose, nonetheless, that the factors that sometimes persuade courts to deny requests for destruction should render them at least marginally more receptive than they currently are to staying or denying injunctions, particularly when there is a substantial risk of holdup. In addition, environmental costs may be reduced if, in appropriate cases, courts were more willing to stay injunctions pending the sell-off or design-around of infringing products rather than requiring their destruction or long-term storage
