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Automating Judicial Discretion: How Algorithmic Risk Assessments in Pretrial Adjudications Violate Equal Protection Rights on the Basis of Race
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Beyond Deliberate Indifference: Rethinking Institutional Responsibility and Title IX Liability in K-12 Education
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Optional Legislation
Get PDFNot since the nineteenth century has partisanship been this intense. The only thing that Democrats and Republicans can agree upon, it seems, is that “Washington is broken.” Beyond the chimeras of bipartisanship or enduring one-party rule, this Article proposes a new solution to legislative dysfunction in Washington: optional legislation. Imagine that states could opt in to a federal program—say, universal basic income or Medicare for All—on the condition that they alone foot a higher tax bill to pay for the plan. States that opt out are completely unaffected because they do not have to contribute funds. Given that each party controls its own set of states, optional legislation enables each party to govern at the federal level with a degree of independence from the other. By comparison to nationwide bills that have the support of a single party, optional legislation would not only be more politically viable and resilient, but would also lead to more innovative and democratic policies. Optional bills hypercharge the “laboratories of democracy” afforded by our federal system, given that they enable states to experiment with programming that they would be unable or unwilling to administer on their own. This Article thus presents a new form of federalism engineered for eras of extreme partisan discord. Washington is indeed broken, and optional legislation can help fix it
Contractual Depth
Get PDFWho is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more intended audiences than courts and communities: instead, they are drafted with many third parties in mind, including regulators. When contracts speak to many audiences, they gain multiple layers of meaning, giving them “contractual depth.” This Article draws upon a series of novel interviews with dealmakers—law firm partners, general counsel, and executives—in a wide range of industries to provide preliminary evidence on the prevalence of contractual depth in the modern economy. Contractual depth suggests three potential contributions to contract law and theory. First, it sheds new light on the sources of contractual incompleteness. By introducing third party audiences as a constraint on parties’ ability to distill their intentions into contract terms, this Article provides grounds for expanding existing frameworks for understanding incomplete contracts. Second, contractual depth suggests that the renegotiation of agreements may be “sticky” (i.e., changing terms ex post may be harder than we typically assume). This has important consequences for our understanding of economic organization. Finally, this Article offers practical guidance to contract drafters about how to mitigate any challenges that result through new approaches to contract design