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Antipolitics and the Administrative State
Get PDFThe modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only be made by elected officials and that all administrators should do is carry out technical tasks calling for expertise. We argue that this conception is untenable because administrators inevitably make policy decisions that call for value judgments. On the other hand, a second conception—one of antipolitics as antifavoritism—is both realistic and desirable to expect of those who occupy positions of administrative power. This second conception holds that administrators, even though they make value judgments, should do so only with the aim of promoting overall public value, avoiding decisions made for narrow, self-interested reasons. We show that many doctrines of administrative law follow from an antifavoritism principle, as the law aspires to free the administrative state from decision-making that is baldly based on the interests of administrators and their partisan overseers or friends. Today, as the state comes under increasing threat from populist and authoritarian attempts to capture its power, distinguishing between the two conceptions of antipolitics—one unrealistic, the other imperative—can help to channel antipolitical impulses where they are most needed to preserve the integrity of administrative governance
An introduction to the law and economics of trademarks
No full textThis discerning and detailed Research Handbook examines the law of trademarks, unfair competition, and dilution from a variety of law and economics perspectives. With a comprehensive exploration of trademarks and trademark law, it provides an excellent illustration of the analytical diversity that the law and economics approach can bring to legal issues
My Father’s Eyes, My Mother’s Rage
No full textMy Father\u27s Eyes, My Mother\u27s Rage is the raw and emotionally charged debut poetry collection by Rose Brik. Rose delves into the intricate layers of the human experience with profound insight. Through her verses, she fearlessly navigates themes of the mother and father wound, childhood trauma, domestic violence, grief, mental health struggles, love, motherhood and ultimately, the process of healing. Her words possess the power to unearth buried emotions and memories, evoking a deep sense of empathy and reflection in her readers.https://scholarship.law.tamu.edu/womens-history-month-2025-works/1006/thumbnail.jp
Fineman Speaks to Dobbs
Get PDFIt is an honor to comment on the scholarship of the preeminent legal theorist Martha Fineman. Throughout her pioneering career, she has challenged liberal feminist ideals grounded in anti-discrimination principles. She shows how sex neutrality and formal equality in law and policy fail to realize justice for women and children. In the last few decades, she has broadened her analysis to a critique of autonomy as a foundational ideal in law. In its place, she offers an account of the state’s obligation to respond to universal human vulnerability. As an entirety, I have found Fineman’s scholarship important to my own work because it offers a formidable normative argument for affirmative entitlements for caregivers and caretaking. Her specific analyses have ranged across diverse socio-legal arenas from divorce law and child custody, to the structure of the workplace, to public assistance and welfare policies.
In this Essay, I explore the import of Fineman’s ideas for a pressing feminist issue upon which neither of us have focused in our scholarship: abortion. Given her longstanding focus on the social debt owed to mothers (including men who perform the labor of mothering), it is interesting that Fineman has not specifically spoken to the importance of women’s freedom from motherhood. In this Essay, however, I argue her ideas offer a critique of Dobbs v. Jackson Women’s Health Organization and a theoretical foundation for abortion access. I hope this nascent exploration offers new insight into both the range and power of Fineman’s scholarship and productive paths forward for the reproductive justice movement
The Right to Have Property
Get PDFLaura Underkuffler has kindly commented on my progressive, social- relations approach to property and property law. I feel humbled, honored, and seen. She notices the core moral commitments manifested in that work. She focuses on my scholarship on discrimination in public accommodations, the violent dispossession and persisting sovereignty of Native nations, and the obligations of the rich toward the poor. She emphasizes my willingness to take a moral stance. And she comments on the fact that I attempt to persuade readers about what the law should be, not just by interpreting authoritative texts, but by making normative arguments that are built on stories. She ponders the role of stories in the legal system. Well, here are some stories, and here are some moral stances
The changing chemistry between intellectual property and investment law
No full textThe past decade has seen investment law entering the intellectual property domain. Welcome or not, this area of law has raised questions and concerns about the future of the international intellectual property regime. This chapter explores the changing chemistry between intellectual property and investment law. Specifically, it discusses future developments in four areas: (1) international trade and investment agreements; (2) investor-state disputes involving intellectual property claims; (3) new developments in intellectual property law; and (4) external considerations outside the intellectual property and investment domains
A Theoretical Justification for Treating the Contract for Deed as a Mortgage
Get PDFMillions of Americans finance their home using the treacherous contract for deed. Denied access to the conventional mortgage, the contract for deed often is the only alternative for Americans seeking the stability of homeownership. Historically, however, this deceptive financing device disrupted the lives of thousands of individuals by forfeiting their property and all payments made on the contract—even where only one installment was overdue. Low-income Americans and immigrant families disproportionately experience the brunt of the contract for deed. Furthermore, as Americans experience rising prices and increasing financial instability, there is reason to fear sellers—equipped with insight into lenders’ former mistakes—could revive the contract for deed, using it to swindle unsuspecting buyers. Several scholars previously addressed the necessity of treating the contract for deed as a mortgage. However, none addressed the critical underlying question: What is property, and what role does it play in society? This Article analyzes natural law, personhood, utilitarian, and civic republican theories of property as applied to the dilemma of the forfeiture clause. Whether it is because of the stifling of community, the destruction of an individual’s external sphere of freedom, or the inhibiting of a citizen’s ability to participate in democracy, channeling the insight of some of the world’s greatest philosophers compels the conclusion that change is necessary. Lastly, courts are not without guidance. The Indiana & Kentucky Supreme Courts established clear doctrine treating the contract for deed as a mortgage. Thus, given that enforcing forfeiture clauses in contracts for deeds is incongruent with the philosophical foundations of property law, it is time for society to follow the Indiana and Kentucky approaches and treat this financing device as a mortgage
GameStopped: How Robinhood’s GameStop Trading Halt Reveals the Complexities of Retail Investor Protection
Get PDFShould brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop shares thus capping any further losses to Melvin Capital while at the same time capping potential further gains for the retail investors.
Most of the retail investors were customers of one brokerage firm— Robinhood, Inc. for which Robinhood drew much criticism. Was Robinhood’s decision to restrict trading a result of some financially commingled allegiance to Melvin Capital or was it driven by some other reason? Moreover, is trading in the public equity markets “rigged” to favor the big hedge funds and institutional investors to the detriment of retail investors?
With the use of technology, online trading platforms, and social media, public trading markets are evolving resulting in unprecedent occurrences. Is the current regulatory environment properly situated to maintain a “fair and orderly” public trading market? Do brokerage firms need to reexamine their operating protocols in relation to their retail investors? This Article adds to the discussion by exploring these questions
Natural Law, Assumptions, and Humility
Get PDFThis review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and the logically inconsistencies involved in Claeys’s attempts to defend the justice of non-Indian claims to land that had belonged to Indian nations
Intellectual property teaching and research: How has the academy changed in the past two decades?
No full textCovers key developments in intellectual property rights over the past two decades across several jurisdictions within Europe, North America, Central America, and Asia Provides first-hand accounts of changes within the IP profession and practice from major IP thought-leaders Engages with a wide range of topics on trade marks, patents, image and publicity rights, geographical indications, and developments in IP practic