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Reputational versus Beckerian Sanctions
No full textLegal sanctions cause reputational losses in addition to the direct losses. Lowering the probability of punishment reduces these reputational losses by diluting the informational value of verdicts. These considerations better align the positive as well as normative implications of law enforcement models with intuition and empirics: violations of the law are more responsive to the certainty rather than the severity of punishment even absent risk-seeking offenders (positive), which causes extreme Beckerian punishments to be inefficient when sanctions are socially costly to impose (normative). Moreover, in some cases optimal enforcement is “anti-Beckerian”: punishment is symbolic, and detection costs are incurred solely to provide reputational incentives
Adjudicating Identity
Get PDFLegal actors examine identity claims with varying degrees of intensity. For instance, to be considered “female” for the U.S. Census, self-identification alone is sufficient, and no additional evidence is necessary. To change a sex marker on a birth certificate to “female,” however, self-identification is not enough; some states require people to show that they do not have a penis to be considered “female.” Similar examples of discrepancies in the type and amount of evidence considered for identity claims abound across identities and areas of law. Yet legal actors rarely acknowledge that they are adjudicating identity in the first place, much less explain or justify the varying levels of scrutiny exacted upon identity claims. This Article attempts to make sense of identity adjudication by providing a taxonomy that explains why some identity claims are interrogated more than others. Taking a broad view of identity adjudication, it examines three types of laws (data-collection, anti-discrimination, and benefit laws) as well as four identity categories (religion, sexual orientation, sex, and race) and concludes that both the type of law at issue and the identity category affect how an identity claim is adjudicated. It then argues that across identities and types of laws, legal actors are often adjudicating identity without proper attention to the particular legal context and examining the wrong type of identity evidence in light of the specific law at issue. This context-detached approach to identity adjudication produces inconsistent and incoherent results; it can also impinge on privacy interests and reinforce problematic stereotypes. This Article calls for a context-informed approach to identity adjudication, where the question of identity is linked to the function of the specific law rather than treated as an independent and stable “truth” about an individual
From Pandemic to Pedagogy: Teaching the Technology of Lawyering in Law Clinics
Get PDFThe COVID-19 pandemic has transformed the nation’s approach to work and learning. Law schools, law firms, courts, and administrative agencies abruptly closed their offices and quickly reimagined how to perform their daily functions remotely. Many of these institutions have plans to maintain aspects of remote operations and services post-pandemic. With this in mind, the authors of this Article conducted a survey of law school clinical faculty during the winter of 2021 to better understand how clinicians pivoted their instruction and practice using technology during the pandemic. The authors use the survey results to show how the COVID-19 experience positions clinical programs to be leaders in answering the growing calls to incorporate technical competency into legal education. The authors draw on the experiences of clinicians during the pandemic to demonstrate how law practice technology can be deliberately and thoughtfully integrated into existing clinical pedagogy and practice. The Article concludes by urging clinicians to build on the current momentum to embrace what they call “the technology of lawyering” as an indispensable component of clinical education
Good For the Goose but Not for The Gander: Biden’s Promise to Appoint a Black Female to The Supreme Court and Title VII Principles
Get PDFThe 2022 retirement of Justice Stephen Breyer and President Joe Biden’s promise to exclude all non-Black females from consideration for his replacement has sparked controversy. Some have praised the decision as essential to ensuring diversity on the Court and point out that there are more than enough qualified Black women to select from. And some believe the decision will result in corporate leaders making similar calls for equity in their own companies. Others have criticized the decision, expressing a belief that discriminating on the basis of race and gender is “not a great start in selecting someone sworn to provide equal justice under the law.” Even some commentators on the left have criticized Biden’s promise due to how it might “needlessly tokenize[]” the eventual candidate and “doom[] them to racist and sexist skepticism before they even [get] the nod.” A survey found that over three-fourths of respondents believe Biden should consider all possible nominees.
Biden’s promise was initially made at the 2020 Democratic primaries. It was likely a wise strategic move by then-candidate Biden, as the pledge prompted the loudest cheers of the night at the Democratic debate where it was announced. It was also a powerful signal to those who doubted Biden’s treatment of Black women after his role in the 1991 Anita Hill hearings. The pledge may also have been a response to how Democrats underperformed among the Black female demographic in the 2016 presidential election. Indeed, Biden improved among that demographic in 2020. Regardless of the practicality of Biden’s pledge, refusing to consider people for a job based solely on their race and gender typically implicates Title VII employment discrimination protections.
Title VII employment discrimination protections do not apply to the position of Supreme Court Justice due to its classification as an employee in the excepted service and not the competitive service.[12] This Article looks beyond that fatal determination to analyze what the result of Title VII principles would be if applicable. This analysis provides valuable insight into the purpose of Title VII protections and the significance of discrimination in one of the highest government positions. Part II of this Article provides a brief historical context of Presidents who have either expressed or implied that race or gender was a motivating factor for their Supreme Court nominations. Part III explains why Title VII does not apply to Supreme Court Justices. Part IV evaluates whether Supreme Court Justices are “hired” under Title VII. Part V looks at whether liability under the expansive employment-agency rule is applicable. Part VI examines the difficulty of identifying a harmed party. Part VII considers whether Supreme Court Justices are employees or independent contractors. Part VIII assesses whether gender could qualify as a bona fide occupational qualification. Parts IX and X likewise assess the related issues of whether customer preference or the authenticity exception are applicable. Part XI looks at the overall spirit of Title VII, which creates a heavy burden for those attempting to defend discriminatory hiring practices. Part XII analyzes whether such actions could be allowed under an affirmative action theory. Part XIII transitions away from legal implications and instead considers practical and ethical issues. Part XIV concludes by considering the legal and ethical implications of Title VII protections on other governmental positions
Natural Transplants
Get PDFPolicymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.
This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond
Decoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We\u27re Expecting
Get PDFThe nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential.
While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundydissent’s approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine
Legal and other institutional aspects of groundwater governance
Get PDFThis chapter defines the linked concepts of groundwater governance and groundwater management, explaining how they differ from each other. Then, it describes the prevailing legal instruments for, and the institutional aspects of, groundwater management and governance
The Relationship Between Intellectual Property and Trade Through the Lens of Geographical Indications: The Journey Before, During and After the TRIPS Agreement
No full textThis chapter addresses the relationship between intellectual property rights (IPRs) and trade through the lens of the international, and controversial, protection of geographical indications (GIs). This methodological choice—focusing on a specific IP topic instead of multiple rights—is not only due to the wording limitations of the chapter, but also to the fact that the international regulation of GIs well illustrates the changes, successes and challenges of the international IP system, at the multilateral, regional and bilateral levels. In particular, this chapter recounts how the international system of GI protection developed across several periods. At first, GIs were protected at the multilateral level, but only by a small number of countries. Then, in the 1990s, the TRIPS Agreement included GIs into the global IP agenda. At the turn of the century, however, GI negotiations shifted—even more than other IPRs—to regional and bilateral FTAs. Still, multilateralism showed its resilience precisely with the revisions of a GI agreement, the Geneva Act of the Lisbon Agreement, in 2015. Ultimately, this chapter supports that the main take away of the journey across international GI protection is that the international IP landscape has become more complex and multilayered and the ‘new normal’ relationship between IPRs and trade is the co-existence and combination of multilateralism, bilateralism and regionalism
In the Name of Energy Sovereignty
Get PDFThroughout history, the phrase In the name of the King justified actions that trumped the rights of citizens in order to safeguard the interests of the Crown. Today, in the name of energy sovereignty, states deploy the government apparatus to access oil and gas in other parts of the world, build pipelines on private lands, subsidize renewable energy, and nationalize their oil and power industries. States justify each of these actions by noting that they create a sense of energy independence, ensure security, or achieve other social and economic goals. Energy, however, cannot be trapped in one realm. Its nature is to move across human-created jurisdictions and to settle, at least in the cases of oil and gas, in specific geological formations where extraction is not always economically feasible. Additionally, energy evolves with technological advancements and its production must adapt to new challenges, like those posed by the global climate crisis. Thus, an efficient and reliable energy sector that secures the state requires engagement with other foreign powers to regulate the trade and investment of energy and its sources. States, however, have created a web of often inconsistent treaties, reflecting competing and frequently contradictory energy policy goals. When disputes inevitably arise, arbitrators or committees must balance the parties\u27 competing energy goals. This Article introduces the concept of energy sovereignty as a novel analytical framework to explain the fragmentation and inconsistencies in international energy governance. By introducing archetypical energy sovereignties, this Article provides a framework through which interpreters of trade and investment agreements can balance the competing energy goals that are attached to the agreements. In doing so, this Article demonstrates how ignoring the complexities in the way states exercise their energy sovereignties can undermine integrated regional efforts to deal effectively with energy challenges like reducing carbon emissions or building a cost-effective and resilient energy matrix. This Article uses the United States-Mexico-Canada Agreement (USMCA), the latest North American international trade and investment agreement, to show how the archetypical energy sovereignties conflict with each other and how the USMCA\u27s dispute resolution mechanisms may balance them