3722 research outputs found
Sort by
Good Lawyers, Good Sports?: The Professional Identity of Sports Lawyers Representing Not-For-Profit Entities
Get PDFABA accreditation standards require law schools to develop students’ professional identity, including by encouraging “an intentional exploration of” the legal profession’s “values [and] guiding principles.” This Essay invites legal academia as well as practitioners to explore issues of legal ethics, professionalism, and, especially, professional identity in the context of a new area of legal practice: sports lawyers’ representation of “NIL collectives,” which are not-forprofit entities that college boosters establish to enable college athletes to benefit financially from their name, image and likeness (“NIL”). The work of sports lawyers advising NIL collectives offers an interesting case study for considering how professional values might come into play when lawyers counsel clients and particularly when lawyers counsel not-for-profit entities. NIL collectives may be skirting the tax laws that require not-for-profit entities to serve a public, not private, purpose or circumventing the NCAA’s rules, which forbid its member universities from using NIL compensation to recruit athletes. Even if they are not breaking the law, the collectives may appear to be acting unfairly in how they use financial inducements to assemble winning teams. Lawyers advising NIL collectives might take different views of whether to prompt the client’s representatives to consider the rightness or fairness of the enterprise. Their decision whether and how to counsel their clients about “fair play” in this context will be informed by their sense of professionalism and their understanding of professional values, which are not fixed and uncontested. Among other things, this example illustrates that broadly accepted professional values are only a small subset of the values that shape individual lawyers’ professional identity, influencing how they conduct their work. Therefore, to a large extent, law schools’ role in developing future lawyers’ professional identity requires helping students ascertain their own professional values and how their values apply to particular work
The Limits of Immigrant Resilience
Get PDFEconomists have identified important adaptations that immigrant workers have made to weather economic crises. During times of economic contraction, immigrant workers have moved across industries or geographical locations, downshifted to part-time work, and accepted lower wages to stay employed. Evidence from the Great Recession (2007–2009) shows the benefits of that economic resilience: immigrant workers were more likely than native-born workers to remain continuously employed, to have shorter periods of unemployment when they lost their jobs, and to regain jobs more quickly in the recovery period. Of course, these adaptations had significant personal costs for immigrant workers and their families, but in times of increased job competition, their resilience enabled them to keep jobs and crucial sources of income and had important, positive spillover effects for native-born workers.
Our research, however, shows important limits to that immigrant resilience. In our analysis of Current Population Survey (“CPS”) data during COVID-19, immigrant workers had worse employment outcomes than native-born workers. Looking at the restaurant industry as a case study, we found that immigrant workers were more likely to lose their jobs, keep only low-paying jobs within restaurants, or drop out of the labor market entirely, as compared to native-born workers. The sharply contrasting experiences of immigrant workers during these two crises can be explained by the nearly simultaneous and complete shutdowns that states imposed across the country during the pandemic. These shutdowns undercut any mobility and flexibility advantages that immigrant workers might otherwise have had and threatened immigrants’ already precarious economic positions. As we look to the real possibility of future pandemics, these limits on immigrant resilience counsel for increasing immigrant access to aid programs at both the federal and state levels to benefit both immigrant workers and the larger economy that relies heavily on immigrant productivity
Major Questions, Common Sense?
Get PDFThe Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual clarity in “high stakes” situations. Both linguistic arguments rely heavily on “common sense” examples from philosophy and everyday situations. This Article tests whether these examples really are common sense to ordinary Americans. We present the first empirical studies of the central examples offered by advocates of the MQD, and the results undermine the argument that the MQD is a linguistic canon. Even worse for proponents of the MQD, we show that the interpretive arguments used to legitimize the MQD as a linguistic canon threaten both textualism and the Supreme Court’s growing anti-administrative project
A new approach to the geopolitics of Chinese internets
No full textThis introductory essay summarizes how our understanding of Chinese internets – in the plural – has shifted in the past two decades. The incumbent approach sees ‘Chinese tech’ as a unitary and statist monolith, an incomplete view whose utility has declined. By contrast, the articles in this special issue collectively substantiate a novel geopolitical approach that analyzes ‘Chinese internets’ as internally diverse and externally border-crossing; as both public (governmental and non-governmental) and private (e.g., corporate); as discursive and policy entanglements beyond the dichotomy of multistakeholderism and multilateralism; and as global, regional, and local formations that are connected to, but not entirely constrained by, their national counterparts. Pluralist and multilayered, this new approach to analyzing Chinese techno-geopolitics shall provide a better fit for contemporary internet research involving state and nonstate actors in China, including Chinese companies operating both overseas and globally
Self-Defense and Political Rage
Get PDFThis Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own political positions. All three of these phenomena create challenges for the rule of law due to the increased risk that factually similar cases will turn out differently and that the justice system will merely recreate the monomaniacal, us-versus-them polarization of society at large. This Article surveys the relevant political science and psychological literature on partisanship and reasoning and proposes two interrelated solutions: one pragmatic, at the level of individual trials, and the other cultural, at the level of social discourse. It suggests that judges import what we know about the distortive effects of partisanship into the courtroom through the use of court-appointed psychological experts and jury instructions. Both have shown some success—if tailored precisely to the facts of a specific case—in correcting some forms of juror bias and reasoning errors. This Article further argues that incorporating these processes into the adjudication of politicized self-defense claims will have a broader, expressive value for society as a whole. Trials provide a model for truth-finding, which, for better or for worse, impacts how private citizens evaluate culpability in their day-to-day lives. If trials draw even some people’s attention to the ways in which partisan thinking can generate or justify acts of violence, they may be a force for moderation in how people deal with their political disagreements, which will have benefits far beyond the courtroom
The Evolving International Climate Change Regime: Mitigation, Adaptation, Reflection
Get PDFThe complex international regime for climate change has evolved over the past three decades, from the Framework Convention on Climate Change and the Kyoto Protocol through the Paris Agreement and beyond. We assess this evolution from the 1990s to the 2020s, and its potential future evolution from the 2020s to the 2050s, across three main policy strategies: mitigation, adaptation, and reflection. In its first three decades, the regime has focused predominantly on the mitigation of net emissions and on engaging all major emitting countries in that effort. More recently, as progress on mitigation has been slow and as the impacts of climate change have risen around the world, the regime has begun to address adaptation. The next three decades may see the rise of a third strategy, reflection, if actors (collectively or unilaterally) perceive an urgent need to alleviate peak climate damages through fast-acting but controversial and risky climate interventions known as sunlight reflection methods or solar radiation modification (SRM). Several major international groups have recently issued reports on SRM, yet the international climate change regime has not yet constructed a governance regime for assessment or management of SRM. We recommend and outline comprehensive risk-risk tradeoff analyses of SRM to help avoid harmful countervailing risks. We suggest the development of an adaptive governance regime, starting early and embracing iterative and inclusive learning and updating over time. We urge that among the first key steps should be the development of a transparent international monitoring system for SRM. Such a monitoring system could provide early warning and help deter any unilateral SRM, assess the intended and unintended global and regional impacts of any research or eventual deployment of SRM, foster collective deliberation and reduce the risk of international conflict over SRM, help attribute adverse side effects of SRM to assist those adversely affected, and aid learning to improve the system adaptively over time. Thus, any reflection (of sunlight) should involve ongoing reflection (analysis and revision). Such an SRM monitoring regime is needed before SRM might be deployed, and can be developed at the same time that the focus of current efforts remains on mitigation and adaptation
Carrots, Sticks, and the Evolution of U.S. Climate Policy
Get PDFThe Inflation Reduction Act (IRA), enacted by Congress in 2022, is the most significant federal investment in decarbonization in U.S. history. The law makes hundreds of billions of dollars available for clean energy tax credits, grants to state and local governments, and other financial incentives for public and private investments. The IRA’s focus on incentives, or “carrots,” marks a significant departure from the emphasis on prescriptive regulations and penalties, or “sticks,” that are prominent in federal and state climate policies that predate the IRA. This Article situates the IRA within the existing climate policy framework and explores the long-term impacts of the new law.
The Article begins with an overview of regulations and tax incentives to reduce greenhouse gas emissions leading up to 2007. The Article then discusses the emphasis on pricing carbon through federal Cap-and-Trade legislation from 2003 to 2011, and the return to prescriptive regulation under the Clean Air Act when those federal bills failed. The Article contrasts these efforts with the positive financial incentives included in the IRA, tracking the evolution of the bill and the political and economic circumstances that created the policy window for Congress to pass such an impactful law. The Article concludes with a discussion of the lasting impacts of the IRA and the interplay between the existing policy instruments
Gambling on Housing: Is Adverse Possession a Valid Tool for the Reallocation of Vacant Property?
Get PDFAdverse possession, a staple of first-year law school property classes, never fails to shock the conscience of unsuspecting law students. Some are surprised to learn that a squatter can acquire legal title to another person’s property by moving in and using it for a period of years. In recent years, housing activists have begun to view the doctrine as an outside-the-box solution to our nation’s housing crisis. There are dozens of vacant homes for every person experiencing homelessness in America. Why not give those properties to people who actually use them?
However, this well-intended impulse does not square with reality. Adverse possession law does not incentivize efficient transfers of property when the adverse possessor is a squatter. In addition, adverse possession is—at best—a niche solution. The vast majority of people experiencing homelessness lack the means to pursue an adverse possession attempt, and American adverse possession law is often incompatible with notions of squatters’ rights.
From this perspective, it is tempting to write off this novel application of adverse possession. However, this Article argues that housing activists cause real harm when they advocate for the use of adverse possession. Their rhetoric opens the door for opportunistic individuals to capitalize on unrealistic dreams of home ownership among vulnerable populations. Additionally, it only takes one squatter to trigger public outcry and the imposition of perverse reforms. Therefore, this Article argues that we should not advocate for a cure that could be worse than the disease. Activists must redirect their efforts to interventions that help rather than hurt. Meanwhile, state prosecutors must intervene to stop opportunistic individuals from profiting on others’ adverse possession attempts
Royalty Wars: The Dark Side to Raising the Minimum Royalty Rate for Oil and Gas Leasing on Federal Land
Get PDFIn 2022, the Inflation Reduction Act took marked steps toward changing the course of the oil and gas industry for the first time in over 100 years, requiring that all federal oil and gas leases issued for the following decade have a minimum royalty rate of 16.67%. This paved the way for a major adjustment in the oil and gas industry, which has seen a 12.5% minimum royalty for the past century. In 2023, the Department of the Interior proposed to permanently codify these changes, citing purposes of ensuring a fair return to taxpayers and protecting the environment.
This Article argues that the royalty provision in DOI’s proposal, if passed through Congress, will lead to harmful effects on the economy and production while failing to fulfill its purpose of protecting the environment. Instead of raising the minimum royalty, which will inevitably stunt the growth of the domestic oil and gas industry, agencies should regulate strategically to both promote domestic production and reduce the industry’s emissions footprint on the environmen
Understanding 303 Creative LLC in a Polycentric Constitutional World
Get PDFThe evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.
The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus on the unique nature of the product being sold, the unique nature of same-sex weddings,19 or simply the product being characterized as expressive commerce? And third, how far ranging will 303 Creative LLC’s free speech protections truly be? Will those with deeply held racial or national origin convictions be permitted to raise similar objections under the First Amendment? Or is same-sex marriage sui generis such that society, and our courts, will accept same-sex couples being relegated to a second-class status in the public marketplace, particularly when it comes to same-sex weddings?
Unlike Henny-Penny, this author does not believe the sky is falling. 303 Creative LLC does allow limited discrimination against same-sex couples in the marketplace. This discrimination is permitted despite being in violation of state anti-discrimination laws that increasingly protect sexual orientation and same-sex couples. But the decision will hopefully be narrowly drawn and equally applied. If a vendor selling expressive commerce does not want to serve others, that rule must be equally applicable regardless of the race, gender, religion, or national origin of the person being denied service. The results could get messy. But the law—and the right of free speech to refuse to serve others—must be equally applied. And this mandate, the equal application requirement, will ultimately limit the reach of 303 Creative LLC to ensure a narrow definition of expressive commerce. Society cannot afford to return to an era of segregated services.20 Neither the Court nor Congress will allow that to happen