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Northwestern University Law Review     Full-text available via subscription   (Followers: 8, SJR: 1.381, CiteScore: 1)
Northwestern J. of Technology and Intellectual Property     Open Access   (Followers: 7)
Northwestern J. of Law & Social Policy     Open Access   (Followers: 6)
Northwestern J. of Intl. Human Rights     Open Access   (Followers: 5)
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Northwestern University Law Review
Journal Prestige (SJR): 1.381
Citation Impact (citeScore): 1
Number of Followers: 8  
 
  Full-text available via subscription Subscription journal
ISSN (Print) 0029-3571
Published by Northwestern University Homepage  [6 journals]
  • Defining Interim Storage of Nuclear Waste

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      Authors: Max Johnson
      Abstract: Nuclear power may be humanity’s best hope to curb climate-altering greenhouse gas emissions. But public fear of its dangers, including the toxicity of nuclear waste, undermines its expansion. To provide for more effective waste disposal, in 2021 and 2022 the Nuclear Regulatory Commission (NRC) recommended licensing two privately-owned nuclear waste storage facilities—called Consolidated Interim Storage Facilities (CISFs)—to be built in New Mexico and in Texas. Both states vehemently oppose the construction and operation of these facilities: legislators in both states have proposed state laws opposing them, and both states have sued the NRC challenging the legality of the facilities’ licensure.There is no doubt that an effective waste solution is sorely needed for nuclear power to reach its full potential. But while consolidated, above-ground storage may play an important role in the development of long-term nuclear waste disposal, establishing such a program at the cost of state and public enthusiasm is a long-term mistake. Informed by an analysis of the history of nuclear power and the difficulties inherent in nuclear waste disposal logistics, this Note argues that the NRC’s licensure of the CISFs as “interim” storage facilities contradicts the meaning of that word, and therefore these licensing actions fall outside of the NRC’s regulatory bounds. In doing so, this Note provides a legal argument that New Mexico and Texas—and future parties opposing similar facilities—may utilize in their suits against the NRC. This Note then proposes specific steps that a court may require to ensure that the NRC applies the word “interim” as it is defined.
      PubDate: Sun, 22 Jan 2023 09:00:25 PST
       
  • The Counterdemocratic Difficulty

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      Authors: Aziz Z. Huq
      Abstract: Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation of specific acts or moments, not a complex system made up of electoral institutions, the rule of law, and parties disposed to accept electoral loss.This Article offers a new analysis of the relation between judicial power and the quality of American democracy. This account is nested in a wider, systemic perspective accounting for both political and economic forces. Drawing on recent empirical work in political science and economics, this Article situates the Roberts Court at the nexus of three intersecting “long crises” of American democracy. The first is the democratic deficit embedded in the Constitution’s original 1787 design. The second is a sharp increase in wealth inequality since the 1970s. The third is the more recent reemergence of a sometimes violent “white identity politics” as a rift starkly bisecting the electorate. The fragility of American democracy arises from an untimely confluence of these three forces, which until now have been unfolding along separate tracks at different tempos.The Roberts Court arbitrages between these three counterdemocratic dynamics in ways that impose considerable pressure on the inclusive norms and representative mechanisms through which democracy works. Four lines of precedent merit attention in understanding the convergence of the “long” crises of democracy. These (1) guarantee economic capital, but not associations, a political return; (2) gerrymander civil society by rewarding hierarchical, but not egalitarian, mobilization; (3) facilitate a pernicious form of white identity politics; and (4) undermine electoral and nonelectoral foundations of democratic rotation.Through these lines of jurisprudence, economic, social, or cultural capital is parlayed into disproportionate political power. This doctrine hence entrenches such power into a form of durable incumbency. These decisions, in other words, “encase” extant distributions of economic and sociocultural power from democratic challenge. Drawing out these elements, this Article maps out the “counterdemocratic difficulty” of judicial review as presently employed.
      PubDate: Sun, 22 Jan 2023 09:00:20 PST
       
  • The Misunderstood History of Textualism

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      Authors: Tara Leigh Grove
      Abstract: This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a “literal” and “wooden” “plain meaning school.” More surprisingly, modern textualists later accepted this account—a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the “literal” old plain meaning school, modern textualists defined “textualism” so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on “conventional wisdom.” Second, the analysis suggests that theorists should set aside debates over “literalism” in statutory interpretation. The question is not—and has never been—whether interpreters should look to context but rather which context they should consider.
      PubDate: Sun, 22 Jan 2023 09:00:15 PST
       
  • Consequences and the Supreme Court

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      Authors: Aaron Tang
      Abstract: May the Supreme Court consider consequences when it decides the hard cases that divide us' The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. In the past few years, the Court has issued no fewer than a dozen opinions in which it expressly identifies the potential adverse consequences of its decision, predicts how losing groups may respond, and rules in a manner that ensures those losing groups will have meaningful options for avoiding their consequences after defeat. What is more, this consequentialist turn is transsubstantive, occurring in constitutional, statutory, and administrative law cases alike.After canvassing these rulings, this Article invites debate on whether consequentialist reasoning truly ought to be categorically forbidden in the Supreme Court’s express decision-making process. Some may have the instinct that even the slightest peek through to the consequences of the Court’s decisions is impermissible, a threat to the distinctive methods and professional practices that differentiate law from raw politics. But open attention to harmful consequences—and the ways in which losing groups might avoid them—can serve salutary aims, too. In particular, a genuine concern for the consequences that its rulings threaten to inflict might help the Supreme Court make meaningful inroads against the mounting public perception that the Court is callous, elitist, and out of touch.
      PubDate: Sun, 22 Jan 2023 09:00:11 PST
       
  • The Immigration Shadow Docket

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      Authors: Faiza W. Sayed
      Abstract: Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision-making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.
      PubDate: Sun, 22 Jan 2023 09:00:06 PST
       
  • Big Data Affirmative Action

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      Authors: Peter N. Salib
      Abstract: As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated every such ambitious affirmative action plan that it has reviewed.This Article proposes a novel solution: Big Data Affirmative Action. Like old-fashioned affirmative action, Big Data Affirmative Action would award benefits to individuals because of their membership in protected groups. Since Black defendants are discriminatorily incarcerated for longer than whites, Big Data Affirmative Action would intervene to reduce their sentences. Since women are paid less than men, it would step in to raise their salaries. But unlike old-fashioned affirmative action, Big Data Affirmative Action would be automated, algorithmic, and precise. Circa 2021, data scientists are already analyzing rich datasets to identify and quantify discriminatory harm. Armed with such quantitative measures, Big Data Affirmative Action algorithms would intervene to automatically adjust flawed human decisions—correcting discriminatory harm but going no further.Big Data Affirmative Action has two advantages over the alternatives. First, it would actually work. Unlike, say, antibias trainings, Big Data Affirmative Action would operate directly on unfair outcomes, immediately remedying discriminatory harm. Second, Big Data Affirmative Action would be legal, notwithstanding the Supreme Court’s recent case law. As argued here, the Court has not, in fact, recently turned against affirmative action. Rather, it has consistently demanded that affirmative action policies both stand on solid empirical ground and be well tailored to remedying only particularized instances of actual discrimination. The policies that the Court recently rejected have failed to do either. Big Data Affirmative Action can easily do both.
      PubDate: Sun, 13 Nov 2022 08:45:17 PST
       
  • Independent Contractors in Law and in Fact: Evidence from U.S. Tax Returns

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      Authors: Eleanor Wilking
      Abstract: Federal tax law divides workers into two categories depending on the degree of control exercised over them by the service purchaser (i.e., the firm): employees, who are subject to direct supervision; and independent contractors, who operate autonomously. Such worker classification determines the administration of income tax and what it subsidizes, as well as which nontax regulations pertain, such as workplace safety and antidiscrimination protections. The Internal Revenue Service and other federal agencies have codified common law agency doctrine into multifactor balancing tests used to legally distinguish employees from independent contractors. These tests have proved challenging to apply and costly to enforce. Yet we know almost nothing about how firms actually classify workers systemically and how such classification relates to the control firms exercise over workers.To bridge this gap between legal principles and legal practice, this Article introduces a novel empirical analysis using a comprehensive data source—all digitized U.S. income tax filings between 2001 and 2016. This analysis establishes several new facts. First, using six measures of firms’ control over workers, I show that employees and contractors have grown increasingly similar over the past two decades. I found this convergence to be particularly pronounced among lower earning workers. I then develop a novel theoretical framework to interpret these findings. Second, I provide empirical evidence that the presence of financial incentives created by government policy increases the likelihood that employees are reclassified as contractors.These results suggest a growing misalignment between how workers are classified and the substance of firm–worker relationships. Put another way, two otherwise identical workers, with relationships that feature a similar degree of control, may end up being classified differently due to, among other factors, their firms’ financial incentives. I conclude by discussing the key normative questions raised by the apparent erosion of the legal boundary delimiting contractors and employees.
      PubDate: Sun, 13 Nov 2022 08:45:13 PST
       
  • Reimagining Public Safety

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      Authors: Brandon Hasbrouck
      Abstract: In the aftermath of George Floyd’s murder, abolitionists were repeatedly asked to explain what they meant by “abolish the police”—the idea so seemingly foreign that its literal meaning evaded interviewers. The narrative rapidly turned to the abolitionists’ secondary proposals, as interviewers quickly jettisoned the idea of literally abolishing the police. What the incredulous journalists failed to see was that abolishing police and prisons is not aimed merely at eliminating the collateral consequences of other social ills. Abolitionists seek to build a society in which policing and incarceration are unnecessary. Rather than a society without a means of protecting public safety, abolitionists desire a society where the entire public is safe. That safety requires security in all our material needs, not merely protection from private violence.Abolition democracy challenges us to envision a society where all people have the respect, education, economic resources, civil rights, and franchise necessary to participate fully in all significant aspects of public life—a society in which we are both safe and free. This challenge to our worldview is further compounded by the prevalence of inequality and a culture of violence in American society. In this Article, I meet that challenge with a groundbreaking look at how such a vision requires us to look at public safety not as a zero-sum game between liberty and security, but as a collaborative promotion of life, liberty, and pursuit of happiness for all.
      PubDate: Sun, 13 Nov 2022 08:45:10 PST
       
  • Moral Nuisance Abatement Statutes

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      Authors: Scott W. Stern
      Abstract: On May 19, 2021, Texas enacted S.B. 8—also known as the Texas Heartbeat Act—which prohibits almost any abortion of a fetus once a heartbeat can be detected, effectively banning abortions after only six weeks of pregnancy. Just as controversially, S.B. 8 also specifies that it is enforceable exclusively through private civil actions, and it allows any private person to sue anyone who “performs,” “induces,” or “knowingly . . . aids or abets the performance or inducement of an abortion,” seeking injunctive relief and statutory damages of $10,000 per violation. The passage of S.B. 8 immediately led to calls for, and predictions of, copycat laws. Within weeks, legislators in several states had indicated their intent to pass identical bills, while others warned that the law’s enforcement mechanism could be applied to a range of lawful activities, from gun possession to facilitation of same-sex marriage. Indeed, states have already passed laws enabling individuals to file suit against schools that teach “critical race theory” or refuse to exclude transgender students from bathrooms or athletics. Numerous legal scholars, judges, and commentators have decried this “unprecedented” enforcement mechanism, especially the creation of a private cause of action for uninjured individuals with no connection to the person seeking an abortion. Critics have likewise labeled as unprecedented the fact that S.B. 8 enables plaintiffs to file suit anywhere in Texas, denies defendants certain well-recognized affirmative defenses, compels losing defendants to pay plaintiffs’ fees and costs, and provides a “bounty” for successful plaintiffs.In fact, the only truly unprecedented aspect of S.B. 8 is that it entirely displaces public enforcement with private enforcement. Virtually every other part of its enforcement scheme—the deputization of uninjured private citizens, the broad venue provision, the creation of civil “bounties,” the disallowance of certain defenses, and the provision for plaintiffs’ fees and costs—enjoys ample precedent. Beginning in the nineteenth century and continuing throughout the twentieth, state legislatures across the country passed hundreds of laws enabling any private citizen, regardless of personal injury or interest, to bring suit to remedy a range of supposed social ills—from the sale of liquor to the sale of sex, from air and water pollution to the unlicensed practice of dentistry. Although these laws differed considerably, their hallmark was their empowerment of uninjured individuals to bypass state authorities and directly use the machinery of the courts to remedy something the legislature considered a harm to the public at large.In this Article, I argue that S.B. 8 is best understood as the latest of these laws, albeit taken to a new extreme in its foreclosure of any public enforcement. Drawing deeply on original archival research, this Article provides the first comprehensive history of these laws, which I call “moral nuisance abatement statutes.” The authors of these statutes took inspiration from the common law of public nuisance, but they eliminated its “special injury” requirement, instead allowing uninjured individuals to bring suit to abate so-called nuisances. Although citizen-suit provisions are common in state and federal statutes, moral nuisance abatement statutes go further than any other private enforcement schemes, not just by dispensing completely with the demand of injury but also by shifting burdens of proof, foreclosing common defenses, and providing financial incentives for plaintiffs—all in the name of more effectively attacking a supposed cancer on the commons. Moral nuisance abatement statutes—laws such as S.B. 8—are likely to spread. This Article thus historicizes these statutes, clarifying their past, claiming for them a significant present, and providing some clues to predict their future. The purpose of this analysis is not to minimize the real ways that S.B. 8 departs from earlier moral nuisance abatement statutes. Rather, its point is to identify these statutes as belonging to a common class, which better enables us to analyze their spread, impact, similarities, differences, and power.
      PubDate: Sun, 13 Nov 2022 08:45:06 PST
       
  • The Rule of Recognition and Presidential Power

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      Authors: Austin Piatt
      Abstract: Professor H.L.A. Hart’s theory of the rule of recognition, introduced in 1961, asserts that every legal system requires a rule of recognition to tell society what the law is. Though much scholarship has been dedicated to analyzing America’s theoretical rule of recognition, Hart’s theory has not yet been applied to the numerous actions and operations of America’s Executive Branch. The rule of recognition should be able to tell us which executive actions have the authority of law. Yet, when we try to make sense of various recent orders, memos, guidance documents, and letters emanating from the White House and administrative agencies, the rule of recognition falls short of its purpose.This Note is the first to apply Hart’s theory to a sample of Executive Branch actions—including executive orders, “Dear Colleague” letters, and even Twitter—and derive lessons about Hart’s work from that application. By taking the rule of recognition out of the realm of theory and applying it to our modern reality, this Note raises important questions about our government and Hart’s theory. Is there something wrong with Executive Branch actions' Is there something wrong with Hart’s theory' Maybe it is failing to settle uncertainty as it was proffered to do. Or maybe this real-world application gives us reason to question Hart’s fundamental thesis. Addressing these questions will not only deepen our understanding of the law’s philosophical underpinnings but will also bolster our understanding of various government actions in the real world.
      PubDate: Sun, 09 Oct 2022 08:49:02 PDT
       
  • The Supreme Court Gets the Ball Rolling: NCAA v. Alston and Title IX

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      Authors: Arianna Banks
      Abstract: Student-athlete compensation has been a consistent topic of controversy over the past few years, as critics question the legitimacy of the NCAA’s notion of amateurism and proponents favor the status quo. The Supreme Court decision in NCAA v. Alston has only served to intensify the debate, opening the door to alternative compensation structures. Despite a unanimous ruling in favor of the athletes, the limited holding of the case has only produced further questions. In his scathing concurrence, Justice Kavanaugh raises one such question: how does a student-athlete compensation structure comply with Title IX' This Comment seeks to address that question by analyzing two possible compensation regimes and their compatibility with Title IX.
      PubDate: Sun, 09 Oct 2022 08:48:59 PDT
       
  • The Fourth Amendment and the Problem of Social Cost

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      Authors: Thomas P. Crocker
      Abstract: The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality—the precondition for exclusion or damages— itself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not' Taking a cue from Professor Ronald Coase’s famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what “social cost” entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize “social cost” seriously.Conceptions of social cost rely on choices of perspective and judgments about what counts as salient harms that necessitate a remedy. To date, the predominant perspective the Court takes in constructing and implementing Fourth Amendment doctrine is the policing perspective. This perspective is evident both when doctrine is applied to ordinary cases and when doctrine is shaped by using video evidence such as body-worn cameras that reinforces law enforcement’s perspective. The result of prioritizing a policing perspective is to focus on the harms produced by imposing the exclusionary rule or civil liability on law enforcement’s illegal acts, not upon the harms suffered by innocent individuals and broader communities. Such a narrow perspective is a problem because it constructs constitutional meaning in a way that excludes much of what scholars and the public take the Fourth Amendment to mean through the values it protects. Harms that flow from those citizens who are law enforcement officers—those empowered with the authority to search, arrest, employ violence, and use deadly force—that break the law may be particularly acute given the special role they play in political society. This Article articulates this concern as an inverted “broken- windows” analysis. Just as minor crime left unregulated within a community is said to produce greater social harm through the spread of lawlessness, minor illegality perpetrated by police left unregulated can produce greater social harm—with sometimes tragic effects—through police impunity. This latter possibility is insufficiently recognized in theory and practice. Through such internal criticism of Supreme Court doctrine, this Article begins from the Court’s own commitment to the analytic centrality of social cost when constructing the meaning of the Fourth Amendment through its exclusionary-rule and qualified-immunity doctrines and proposes additional perspectives necessary for more accurate calculations designed to protect constitutional rights and promote political community.
      PubDate: Sun, 09 Oct 2022 08:48:56 PDT
       
  • Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort
           Villains

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      Authors: Samir D. Parikh
      Abstract: Financially distressed companies often seek refuge in federal bankruptcy court to auction valuable assets and pay creditor claims. Mass tort defendants—including 3M, Johnson & Johnson, and Purdue Pharma—introduce new complexities to customary Chapter 11 dynamics. Many mass tort defendants engage in malfeasance that inflicts widespread harm. These debtors fuel public scorn and earn a scarlet letter that can destroy value for an otherwise profitable business. Scarlet-lettered companies could file for bankruptcy and quickly sell their assets to fund victims’ settlement trusts. This Article argues, however, that this traditional resolution option would eviscerate victim recoveries. Harsh public scrutiny has diminished the value of the resources necessary to satisfy claims, creating a discount that must be borne by victims.My public benefit proposal charts a new course. Instead of accepting fire-sale prices and an underfunded settlement trust, the scarlet-lettered company emerges from bankruptcy as a corporation for the public benefit. This modified reorganization offers victims the greatest recovery. The continued operation preserves value during a transition period, after which the going concern can be sold efficiently. Assets that have been tainted by tortious conduct are cleansed behind a philanthropy shield and then sold to capture the value rebound. The victims’ collective is the owner of the new company and can participate in a shareholder windfall if there is strong postbankruptcy performance.At the forefront of a new trend in aggregate litigation, this Article proposes a public benefit alternative to traditional resolution mechanisms. This approach delivers utility that will support application in a variety of contexts, assuming certain governance safeguards are maintained. In our new age of greater personal and corporate accountability, more scarlet-lettered companies will emerge and ultimately land in bankruptcy. The need to address the disposition of tainted assets will be paramount in compensating mass tort victims trying to reassemble fractured pieces. This Article explains a new phenomenon and reconceptualizes resolution dynamics in a way that will have policy implications that transcend aggregate litigation.
      PubDate: Sun, 09 Oct 2022 08:48:52 PDT
       
  • Information Privacy and the Inference Economy

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      Authors: Alicia Solow-Niederman
      Abstract: Information privacy is in trouble. Contemporary information privacy protections emphasize individuals’ control over their own personal information. But machine learning, the leading form of artificial intelligence, facilitates an inference economy that pushes this protective approach past its breaking point. Machine learning provides pathways to use data and make probabilistic predictions—inferences—that are inadequately addressed by the current regime. For one, seemingly innocuous or irrelevant data can generate machine learning insights, making it impossible for an individual to anticipate what kinds of data warrant protection. Moreover, it is possible to aggregate myriad individuals’ data within machine learning models, identify patterns, and then apply the patterns to make inferences about other people who may or may not be part of the original dataset. The inferential pathways created by such models shift away from “your” data and towards a new category of “information that might be about you.” And because our law assumes that privacy is about personal, identifiable information, we miss the privacy interests implicated when aggregated data that is neither personal nor identifiable can be used to make inferences about you, me, and others.This Article contends that accounting for the power and peril of inferences requires reframing information privacy governance as a network of organizational relationships to manage—not merely a set of dataflows to constrain. The status quo magnifies the power of organizations that collect and process data, while disempowering the people who provide data and who are affected by data-driven decisions. It ignores the triangular relationship among collectors, processors, and people and, in particular, disregards the codependencies between organizations that collect data and organizations that process data to draw inferences. It is past time to rework the structure of our regulatory protections. This Article provides a framework to move forward. Accounting for organizational relationships reveals new sites for regulatory intervention and offers a more auspicious strategy to contend with the impact of data on human lives in our inference economy.
      PubDate: Sun, 09 Oct 2022 08:48:49 PDT
       
  • Challenging Equality: Property Loss, Government Fault, and the Global
           Warming Catastrophe

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      Authors: Laura S. Underkuffler
      Abstract: One of the bedrock principles of American property law is that all property owners and all property are protected equally. We do not believe—when it comes to compensation for loss—that poor owners are compensated rigidly and rich owners are not, or that property in private homes is protected rigidly and property in commercial or industrial structures is not. When it comes to compensation due to public or private fault, we believe in absolute equality. Equal treatment of property is at the heart of the liberal state and is the promise of American property law.This Essay challenges that bedrock idea. The ultimate inadequacy of finite resources limits government decisions about their distribution, including compensation of private owners for their loss under takings law and other theories. In fact, the idea that public payment for private loss is “resource neutral,” particularly in the context of government fault-based claims, has always been a mythical one. When it comes to legal protection and rights to public compensation, ideas of equal protection for all kinds of property loss are neither currently implemented by American law, nor should they be. When loss occurs, and the adequacy of public resources fails, all property is not equal. It is not equal in origin, societal value, or deserved compensation. If there has been plausible deniability of this truth in the past, it will be shattered by the looming demands of global-warming catastrophe.
      PubDate: Sun, 28 Aug 2022 19:46:11 PDT
       
  • Debt Governance, Wealth Management, and the Uneven Burdens of Child
           Support

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      Authors: Allison Tait
      Abstract: Child support is a ubiquitous kind of debt, common to all income and wealth levels, with data showing that approximately 30% of the U.S. adult population has either been subject to paying child support or has received it. Across this field of child support debt, however, unpaid obligations look different for everyone, and in particular the experiences around child support debt diverge radically for low-income populations and high-wealth ones. On the low-income end of the spectrum, child support debt is a sophisticated and adaptive governance technology that disciplines and penalizes those living in or near poverty. Being in child support debt on the high-wealth end of the spectrum, however, produces completely opposite outcomes. Child support payors with wealth have the ability to insulate themselves from debt and the consequences of nonpayment in ways that other families and individuals can never replicate. In this way, child support debt is a legal and financial formation that embodies divergent rules, disparate modes of enforcement, and unequal opportunities. It is a bimodal system that punishes low-income debtors and exculpates high-wealth ones across racialized and differentiated populations. And, understood in this way, the system is an amalgam of oppressive but supple forces that bear traces of the imperial, the colonial, the historical, and the inherited.
      PubDate: Sun, 28 Aug 2022 19:46:06 PDT
       
  • Eviction Court Displacement Rates

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      Authors: Nicole Summers
      Abstract: This Essay introduces the concept of eviction court displacement rates, defined as the percentage of eviction filings that result in tenant displacement. The Essay argues that a jurisdiction’s eviction court displacement rate provides crucial insight into the role of its legal system in driving substantive eviction outcomes. The Essay then compiles existing data on court displacement rates and compares those rates across jurisdictions. This comparison reveals massive variation in court displacement rates nationwide. In some jurisdictions, a tenant’s likelihood of displacement upon receiving an eviction filing is approximately one in twenty. In other jurisdictions, it is higher than one in two. The Essay outlines the challenges involved in distilling the factors underlying this variation. Notwithstanding these challenges, it identifies and assesses potential explanations for the disparities. The Essay calls for empirical analysis to understand precisely which parts of the eviction legal system—the substantive laws, procedures, and access-to-justice factors—shape eviction court outcomes.
      PubDate: Sun, 28 Aug 2022 19:46:00 PDT
       
  • American Courts' Image of a Tenant

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      Authors: Nadav Shoked
      Abstract: What is the core of current American residential landlord–tenant law, and how was that core formed' This Essay argues that in the past few decades courts have settled on a two-pronged landlord–tenant law regime. The law provides tenants with assurances respecting the quality of the units they rent. It does not, conversely, provide them with any assurances respecting the price of the rental units—and, therefore, respecting their ability to remain in those units.The first component of the regime was established through the well-known judicial creation and endorsement of the warranty of habitability. The second component’s entrenchment is often attributed to legislative reforms that rejected rent control. In fact, however, courts played a major role in instating this component as well. Through a heretofore largely ignored resort to multiple local government law doctrines, courts have consistently rejected municipal measures aimed at regulating the pricing of rental units.This prevalent distinction courts have instituted between quality controls (which they require) and price controls (which they reject) cannot be justified in traditional economic terms. The academic literature does not support the contention that one measure is more effective in aiding poor tenants than the other. The current regime can hardly be viewed, therefore, as geared toward redistribution and fairness. Rather, this Essay argues, the distinction between quality and price controls that characterizes American landlord–tenant law serves to operationalize a certain view of the meaning of tenancy in modern times. Courts engaged in what they perceived as a traditional common law exercise of updating the contours of the landlord–tenant legal relationship. In doing so, they were inspired by, and then implemented, an image of the new urban tenant as requiring—and expecting—certain amenities and rights. Importantly, this image of the modern tenant was general and class neutral. It thus lent support to measures benefitting—at least theoretically—all tenants, but not to those explicitly, and exclusively, focused on poor tenants.
      PubDate: Sun, 28 Aug 2022 19:45:54 PDT
       
  • Property Law and Inequality: Lessons from Racially Restrictive Covenants

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      Authors: Carol M. Rose
      Abstract: A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included racial covenants to appeal to a predominately white market clientele, resulting in a curtailment of opportunities for African Americans to acquire wealth in real estate. Racial covenants have been unenforceable under constitutional law since 1948, but I will argue that they were also a distortion of standard property law and that they undermined the principles on which property law rests. Courts could have recognized this at the outset and later, but for some reasons that this article suggests, they did not, with long-lasting repercussions for racial wealth inequalities.
      PubDate: Sun, 28 Aug 2022 19:45:48 PDT
       
  • Compulsory Terms in Property

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      Authors: Timothy M. Mulvaney
      Abstract: The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a wide range of reforms to the property system that take aim at resource inequities. Breathing life into these types of reform efforts, therefore, necessarily will require a renewed counterassault on this going critique’s foundations. Building on and contemporizing central insights of the legal realist and critical legal studies movements, this Essay explores some of the key characteristics of those circumstances in which the state’s compelling terms in social and market relationships surrounding property may well be justified on deontological or consequentialist grounds. In so doing, the Essay seeks to generate momentum toward a renewed discourse that eschews knee-jerk opposition to compulsory terms in property in favor of one that engages with the rationales for and against such terms in a context-sensitive fashion.
      PubDate: Sun, 28 Aug 2022 19:45:43 PDT
       
 
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