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Full-Text Articles in Public Law and Legal Theory

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young Jan 2019

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction ...


Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen Jan 2019

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort ...


Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan Jan 2019

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

Choice theory advances a liberal approach to contract law. It brings jurisprudential coherence to the field, explains many puzzling doctrines, and offers a normatively-attractive reform program. In the years since choice theory first appeared, dozens of scholars have subjected it to the most rigorous scrutiny. As a result, choice theory has emerged stronger. This chapter restates the theory, and brings it up-to-date.

First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation proactively to facilitate availability ...


Judges And Judgment: In Praise Of Instigators, Kathryn Judge Jan 2019

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

Faculty Scholarship

This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner ...


Grounding Originalism, William Baude, Stephen E. Sachs Jan 2019

Grounding Originalism, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to ...


Law Enforcement Organization Relationships, Daniel C. Richman Jan 2019

Law Enforcement Organization Relationships, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s offices must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible


Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson Jan 2019

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial ...


The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt Jan 2019

The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt

Faculty Scholarship

We often say that Foucault was influenced by Nietzsche or, more simply, that Foucault was Nietzschean. That is a gross misunderstanding that fundamentally distorts our reading of Foucault’s writings and, worse, does violence to the critical method. Foucault was no more Nietzschean than he was “mad” because he studied madness or “neoliberal” because he studied Gary Becker’s economic writings. Instead, Foucault took Nietzsche’s discourse as an object of study – in a similar way that he took the discourse of madness, of the prison, and of sexuality as objects of study throughout his intellectual lifetime. Writings of Nietzsche ...


Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm Jan 2019

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of ...


A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad ...


Normative Powers (Revised), Joseph Raz Jan 2019

Normative Powers (Revised), Joseph Raz

Faculty Scholarship

The paper provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyse several kinds of such powers. The revision affects mainly the analysis of such types. The main theses of the paper concern the distinction between basic from chained powers and the account of the relations between the normative powers and the values which explain and justify their existence. It ends by showing the connection between the thesis that values depend on human nature and culture and the dependence of normative powers on justifying reasons.


Seeing Transparency More Clearly, David E. Pozen Jan 2019

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The ...


The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt Jan 2019

The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt

Faculty Scholarship

This essay addresses the problem of truth today in light of the common belief, especially among progressives, that we have entered a post-truth age, as well as of the frequent claim that our post-truth society is the fault of postmodernists and their challenge to the objectivity of truth. The essay does not resolve the strategic question whether the post-truth argument is, as a purely tactical political matter, an effective approach to respond to the onslaught of misrepresentations and lies by President Donald Trump and the New Right. Instead, it explores the post-truth argument from a more synoptic perspective regarding the ...


Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati Jan 2019

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across ...


Bureaucratic Resistance And The National Security State, Rebecca Ingber Nov 2018

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the ...


Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan Jan 2018

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in local governments' traffic enforcement responses to budget stress using data from policing agencies in the state of Missouri for the years 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates. In addition, we find that there is an increase in traffic-stop arrests. However, we find that these effects are concentrated among white (rather than black or Hispanic) drivers. The results are robust to the inclusion of a range of covariates for traffic stops and to the inclusion of local population features interacted with ...


Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller Jan 2018

Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path ...


Disclaiming Property, Michael Pappas Jan 2018

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural ...


Hidden Holdouts: Contract Arbitrageurs And The Pricing Of Collective Rights, Robert E. Scott, G. Mitu Gulati, Stephen J. Choi Jan 2018

Hidden Holdouts: Contract Arbitrageurs And The Pricing Of Collective Rights, Robert E. Scott, G. Mitu Gulati, Stephen J. Choi

Faculty Scholarship

Research on the law and economics of contract typically analyzes the explicit pricing of the contract terms in a debt contract by modeling a bilateral debtor-creditor relationship, a framework we call the “classical model.” Under this model, contract terms that affect the debtor’s repayment obligations are reflected in the price the debtor pays. Much of commercial lending, however, occurs in thick markets with standardized multilateral debt instruments. Depending on the degree to which key contract terms implicate collective decision making among dispersed and anonymous creditors, the classical bilateral model of debt contracting can err in its predictions on the ...


Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller Jan 2018

Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract.

Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add?

Our task in Part I of this Essay is ...


Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt Jan 2018

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The ...


Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter Jan 2018

Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals – and a vast literature describing the role of clinics in both the teaching and service dimensions – we have scant empirical ...


Valuation Disputes In Corporate Bankruptcy, Kenneth M. Ayotte, Edward R. Morrison Jan 2018

Valuation Disputes In Corporate Bankruptcy, Kenneth M. Ayotte, Edward R. Morrison

Faculty Scholarship

Prior scholarship points to disagreements about valuation and judicial valuation error as key drivers of Chapter 11 outcomes. Avoiding valuation disputes and valuation errors is also the underlying driver of most proposed reforms, from Baird’s auctions to Bebchuk’s options. In this paper, we undertake a detailed examination of bankruptcy court opinions involving valuation disputes. Our paper has two goals. The first is to understand how parties and their expert witnesses justify their opposing views to the judge, and how judges decide between them. The second is to provide practical guidance to judges in resolving valuation disputes. We document ...


Equality Law Pluralism, Olatunde C.A. Johnson Jan 2017

Equality Law Pluralism, Olatunde C.A. Johnson

Faculty Scholarship

This contribution to the Constance Baker Motley Symposium examines the future of civil rights reform at a time in which longstanding limitations of the antidiscrimination law framework, as well as newer pressures such as the rise of economic populism, are placing stress on the traditional antidiscrimination project. This Essay explores the openings that nevertheless remain in public law for confronting persistent forms of exclusion and makes the case for greater pluralism in equality law frameworks. In particular, this Essay examines innovations that widen the range of regulatory levers for promoting inclusion, such as competitive grants, tax incentives, contests for labor ...


Can Moral Principles Change?, Joseph Raz Jan 2017

Can Moral Principles Change?, Joseph Raz

Faculty Scholarship

The paper considers the main arguments against the possibility that basic normative principles can change, and finds them wanting. The principal argument discussed derives from the claim that normative considerations are intelligible, and therefore that they can be explained, and their explanations presuppose the prior existence of basic normative principles. The intelligibility thesis is affirmed but the implication that basic change is impossible is denied. Subsumptive explanations are contrasted with explanations by analogy. Later in the paper, other objections are considered more briefly: that normative properties are queer, that they are unconnected to the rest of reality, and therefore cannot ...


Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles Jan 2017

Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles

Faculty Scholarship

Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one prominent donor ...


Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter Jan 2017

Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals – and a vast literature describing the role of clinics in both the teaching and service dimensions – we have scant empirical ...


The Choice Theory Of Contracts (Introduction), Hanoch Dagan, Michael Heller Jan 2017

The Choice Theory Of Contracts (Introduction), Hanoch Dagan, Michael Heller

Faculty Scholarship

This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. "The Choice Theory of Contracts" answers the field's most pressing questions: What is the “freedom” in “freedom of contract”? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller show exactly why and how freedom matters to contract. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students ...


Democratic Experimentalism, Charles F. Sabel, William H. Simon Jan 2017

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

This essay, written for a volume surveying “contemporary legal thought”, provides an overview of Democratic Experimentalism, a perspective that draws on both pragmatist social theory and recent practical innovations in private and public organization. Normatively, Democratic Experimentalism aligns with process theories that emphasize the role of courts in vindicating entitlements through inducing, collaborating with, and policing institutions, rather than vindicating them directly through interpretive or policy-engineering techniques. It departs from some such theories, however, in emphasizing that practice must often take the form of continuous investigation and revision, rather than the adoption of definitive solutions already known to at least ...


Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon Jan 2017

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms ...