Authors:Kathy Rong Zhou Abstract: After federal reforms in the 1930s protected the right to organize, the Tobacco Workers International Union made quick work of mobilizing the American South. Its unions, though segregated, made strides. Yet Black unions’ collective bargaining gains could not transcend one of the South’s most oppressive employment practices: segregated systems for worker seniority. One Black union, Local 208 at Liggett & Myers Tobacco Company in Durham, North Carolina, fought for seniority rights for more than three decades. During this time, the federal government increasingly pressured Southern industry and labor to desegregate. Steadfast, Local 208 refused to merge with any white union until its members attained a more equitable seniority system. This start-to-finish history of Local 208 demonstrates how federal desegregation initiatives both encouraged and interfered with Black workers’ fight against discrimination. Embodying the post–Civil War, pre–Civil Rights Act era of Black Southern tobacco labor, Local 208’s decades-long fight presents a precise illustration of the need for the landmark Title VII remedies soon to come. PubDate: Tue, 19 Sep 2023 14:35:09 PDT
Authors:Jacob D. Charles Abstract: In June 2022, the Supreme Court struck down New York’s concealed carry licensing law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. By requiring historical precedent for any modern regulation, that test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically focused Supreme Court case law and a harbinger of potential doctrinal transformations in other domains.This Article critically assesses Bruen’s test and, in the process, raises concerns about other areas of rights jurisprudence trending in ever more historically inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and several unworkable features. Centrally, it underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court attempts to justify. The Article then synthesizes and analyzes the results from more than three hundred lower federal court decisions applying Bruen, which collectively reveal the test’s fundamental unworkability.On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and amplifies arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s gaps and mitigate its open texture, and suggests that courts are justified in reading Bruen narrowly. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs. PubDate: Tue, 19 Sep 2023 14:35:08 PDT
Authors:George F. K. Werner Abstract: In the early 1870s, Durham became a major center of tobacco marketing. Farmers brought their crops to auction warehouses, which then sold them to the town’s manufacturers. This was a process facilitated by a well-developed system of social norms. But the formation of the American Tobacco Company’s “tobacco trust” in the 1890s threatened that arrangement—buyers conspired to pay less per pound of tobacco, and warehousemen lost the ability to police buyers’ conduct. When farmers attempted to organize in response, geographic and social distance caused their efforts to fail. By the time federal courts dissolved the trust in 1911, the damage had already been done.This Note’s historical analysis will be relevant for scholars of both informal ordering and competition law. For the former, it shows that some norm systems depend on the presence of competition. Informal ordering can, of course, also be a response to a lack of competition. But the possibility of collective action problems means that attempts to organize in reaction will often fail. For scholars of competition law, the possibility of norm commandeering provides a concrete example of how concentrated market power can affect economic and social dynamics. PubDate: Tue, 19 Sep 2023 14:35:08 PDT
Authors:Joseph Blocher et al. Abstract: Appellate fact review in constitutional litigation has never been more important. Whether someone’s rights were violated often turns on what happened—matters of fact—and not solely on matters of law. That makes it all the more striking that the U.S. Supreme Court has increasingly reversed rulings of lower courts based on factual disagreement, given that such factfinding is typically entitled to significant appellate deference. Scholars and would-be reformers have noted many problems with appellate factfinding, but have tended to assume that the Court itself has final say on the applicable standard of review.Yet as a matter of constitutional law, the Supreme Court is not the factfinder in chief. Article III gives Congress power to define the Court’s “appellate jurisdiction, both as to Law and Fact” and Article I gives Congress power to “constitute” the inferior federal courts. Congress can, by statute, require Supreme Court Justices and appellate judges to view the factual record with some level of deference. We call this approach “fact stripping.” It is different than the more familiar jurisdiction stripping—the much-discussed power of Congress to take away the federal courts’ power to hear certain kinds of cases—and raises fewer constitutional or legitimacy concerns. And if done properly, it can instead protect rights by shifting power from appellate judges to trial judges and jurors better able to find the facts.Our focus is on use of fact stripping regarding constitutional claims in lower federal courts, but Congress has already regulated the review of constitutional facts—with the Supreme Court’s approval—in other important areas of law. For example, in federal habeas corpus, Congress has mandated more deference by restricting appellate factual review, while in some areas of administrative adjudication, such as immigration, it has required less factual deference (that is, more review) than the constitutional floor would require.How Congress should exercise this constitutional power is primarily a question of how best to allocate power within the judiciary, and thus raises questions of institutional competence, including the role of appellate courts in law development and establishing uniformity, as well as the importance of robust factfinding in constitutional cases. Congress, however, need not agree with where the Supreme Court has drawn those lines, and might want to re-allocate factfinding power to the trial courts. Our goal here is not to prescribe a particular form of fact-stripping legislation, but to suggest that congressional regulation of appellate constitutional factfinding is one of many possible responses to a Supreme Court that has increasingly arrogated factfinding power to itself. PubDate: Tue, 19 Sep 2023 14:35:07 PDT
Authors:Tomer Kenneth et al. Abstract: Does Section 230 of the Communications Decency Act protect online platforms (e.g., Facebook, YouTube, and Twitter) when they use recommendation algorithms' Lower courts upheld platforms’ immunity, notwithstanding notable dissenting opinions. The Supreme Court considers this question in Gonzalez v Google, LLC. Plaintiffs invite the Court to analyze “targeted recommendations” generically and to revoke Section 230 immunity for all recommended content. We think this would be a mistake.This Article contributes to existing scholarship about Section 230 and online speech governance by adding much needed clarity to the desirable—and undesirable—regulation of recommendation algorithms. Specifically, this Article explains the technology behind algorithmic recommendations, the questions it raises for Section 230 immunity, and the stakes in Gonzalez. It opposes generically revoking Section 230 immunity for all uses of recommendation algorithms. Instead, it illustrates and defends a nuanced approach for the desired outcome of Gonzalez and for future possible regulation of recommendation algorithms. Copyright PubDate: Mon, 01 May 2023 08:00:51 PDT
Authors:Jeffrey J. Rachlinski Abstract: Regulatory bodies have increasingly become interested in “nudges,” or low-cost adjustments to the environment in which people make choices. These interventions promise to give more people what they truly want while preserving freedom of choice. In theory, default rules—a type of nudge—that can survive a thorough cost-benefit analysis should both preserve liberty and enhance welfare. In reality, altering default rules can also change people’s preferences. Neutral cost-benefit analysis is thus impossible, and choosing a default rule therefore influences personal freedom. This Article explains how nudges influence preferences and why this makes neutral cost-benefit analysis impossible for regulators. PubDate: Tue, 18 Apr 2023 07:52:29 PDT
Authors:Stephanie Bornstein Abstract: Information disclosures often “nudge” consumers to make better choices—for example, when manufacturers include nutrition labels on food packaging or fuel economy standards on cars. Yet having to disclose can have a nudge effect on the disclosing entity, too—for example, by incentivizing a manufacturer to make healthier food or more fuel-efficient cars. Recently, regulators around the world have begun to use information disclosures to improve racial and gender equality—for example, by requiring certain businesses to disclose information on things like harassment complaints, board diversity, and employee pay. But are such disclosure efforts worth their costs' And what would indicate that policymakers should continue or expand similar measures'This Article addresses how to evaluate what it refers to as “equality disclosures,” highlighting the need to account for the often overlooked public enforcement value of the nudge on the disclosing entity. When measuring disclosure as a behaviorally informed intervention, we tend to focus on the welfare effects on the consumer of the information—the now-informed person who chooses (or declines) to eat the food or purchase the car. But disclosure requirements also affect the behavior of the producer of the information, thus serving an important enforcement role in the administrative state. Any assessment of the value of equality disclosures must include the public benefit gained when the act of having to disclose nudges disclosing entities toward self-monitoring and legal compliance. PubDate: Tue, 18 Apr 2023 07:52:29 PDT
Authors:Cass R. Sunstein Abstract: In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them. PubDate: Tue, 18 Apr 2023 07:52:28 PDT
Authors:Avishalom Tor Abstract: The increasing popularity of behavioral interventions—also known as nudges—is largely due to their perceived potential to promote public and private welfare at dramatically lower costs than those of traditional regulatory instruments, such as mandates or taxes. Yet, though nudges typically involve low implementation costs, scholars and policymakers alike tend to underestimate their often-substantial private costs. Once these costs are accounted for, most nudges turn out to generate significantly lower net benefits than assumed, and some prove less efficient or less cost-effective than traditional instruments. At other times, the private costs of behavioral interventions are sufficiently large to render them socially costly and undesirable even in the absence of superior traditional instruments. Policymakers who implement nudges without considering their private costs therefore risk doing harm rather than good. PubDate: Tue, 18 Apr 2023 07:52:28 PDT
Authors:Kathleen Claussen Abstract: At the start of 2023, tax policymakers are increasingly contemplating how tax law and policy could bolster U.S. foreign policy goals. The most recent proposals seek to leverage information gathered from tax reporting—what this Essay calls “tax intelligence.” However, front and center in considering how tax intelligence can be used to make foreign policy is a challenge: how that information can make its way through the grinder of our foreign commerce bureaucracy in furtherance of productive outcomes. To address this challenge and amplify the promise of these proposals, this Essay offers four contributions. First, it demonstrates that these proposals make an essential move in tax that is consistent with and reinforcing of a trend in other areas of U.S. geoeconomic strategy: they urge intensified reliance on firms as subjects, inputs, targets, and collaborators in foreign policymaking. Second, it argues that commentators are underselling the intelligence value of reporting. Third, this Essay contends that a better administrative infrastructure is sorely needed for tax as well as for other foreign economic instruments to make these reporting efforts successful. Fourth, this Essay concludes that bringing tax into the toolkit could have an unexpected and ironic normalizing effect on geoeconomic policies in our regulatory system. Given that tax law is itself often considered exceptional, bringing it into the collection of emergency foreign commercial tools is likely to make these tools appear less extraordinary—for better and for worse. PubDate: Mon, 17 Apr 2023 05:20:57 PDT
Authors:Brett V. Ries Abstract: Discrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” for clear statements of racial bias that significantly motivated the juror’s decision. The Supreme Court has a history of extending protections against racial discrimination in the jury context to sex discrimination, and, in 2020, the Supreme Court ruled in Bostock v. Clayton County that the prohibition against sex discrimination in employment under Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity. Thus, there may be multiple constitutional avenues to expanding the protection granted in Peña-Rodriguez to LGBTQ+ bias in jury deliberations.This Note argues that such an expansion can soundly be constitutionally granted, particularly when analyzed from an intersectional perspective. Only then can the criminal justice system ensure that LGBTQ+ defendants are punished for what they do, not who they are or who they love. PubDate: Mon, 27 Mar 2023 07:52:28 PDT
Authors:Rebekah G. Strotman Abstract: New judicial federalism urges states to extend their constitutional protections beyond the federal Constitution’s. Yet the scholarship has largely ignored justiciability doctrines—including standing—that dictate the requirements for suing in court. Meanwhile, the federal injury in fact requirement has been debated for years, with critics claiming it is ahistorical and overly restrictive. States, though, are not bound by Article III and can reject the federal standing doctrine. Some states have. In fact, the same year the Supreme Court doubled down on injury in fact by stating “no concrete harm, no standing,” the North Carolina Supreme Court rejected injury in fact and adopted a more permissive legal injury requirement. But the North Carolina Supreme Court’s main rationale was that the federal doctrine is wrong itself. This rests on the mistaken assumption that state and federal courts should have the same standing doctrines. On the contrary, states are not tied to the federal doctrine in any way. This Note explains why states should reject the federal doctrine regardless of whether it is right for federal courts: injury in fact addresses uniquely federal concerns. Federal power grew in response to federal crises and political realities, and, in reaction, the Court used injury in fact to pull the federal judiciary back within its intended limits. Thus, the concerns and values underlying injury in fact are inapplicable to states. Instead of adopting injury in fact, states should adopt more permissive standing doctrines. Such doctrines would be consistent with states’ broader judicial power and would effectuate the goals of the new judicial federalism. PubDate: Mon, 27 Mar 2023 07:52:28 PDT
Authors:Rachel E. Sachs Abstract: Health care policymakers in the United States, particularly at the federal level, have recently considered a range of proposals that would lower prices for prescription drugs. The pharmaceutical industry and many politicians have argued that these proposals would harm innovation incentives, resulting in fewer new drugs coming to market in the future. This Article identifies and explores a key problem with this argument: that it is typically deployed both accidentally and asymmetrically in nature. Specifically, this Article considers previous changes to health laws that had the impact of increasing innovation incentives by providing large new subsidies to pharmaceutical companies—chiefly the creation of Medicare Part D and the passage of the Affordable Care Act—but where policymakers appear not to have analyzed these innovation-related aspects of the new laws. By contrasting these laws with others in which policymakers explicitly centered the innovation-related impacts of their actions, such as the Hatch-Waxman Act and the Orphan Drug Act, this Article suggests that policymakers may in some cases be making innovation policy “by accident,” without knowledge of their likely results. These innovation arguments are also deployed asymmetrically by interested stakeholders, creating the potential for unbalanced policymaking over time. This Article further analyzes the implications of this accidental, asymmetric policymaking for innovation law and policy. PubDate: Mon, 27 Mar 2023 07:52:27 PDT
Authors:Laura Portuondo Abstract: There is an emerging discrepancy in free exercise and equal protection law. For decades, the Supreme Court has maintained that a law’s effects on a protected group are usually insufficient to trigger heightened scrutiny under either the Free Exercise or Equal Protection Clause. This longstanding rule has rendered it virtually impossible to challenge facially neutral laws on constitutional race, sex, and religious discrimination grounds, even where such laws inflict substantial harms on protected groups. Recent free exercise decisions, however, have abandoned this traditional barrier to enforcing constitutional equality rights. In doing so, they have subverted the usual rule that a law’s effects do not much matter, not just under the Free Exercise Clause, but also under the Equal Protection Clause.This Article argues that recent free exercise law makes a powerful case that a law’s effects both can and should play a meaningful role in triggering equal protection scrutiny. Free exercise and equal protection cases historically relied on the same theoretical and doctrinal principles to dismiss a meaningful role for effects in triggering heightened scrutiny. Recent free exercise law—by providing such a role for effects—has overcome each objection. In the process, it has created a doctrinal roadmap for overcoming the same objections in the equal protection context. It has also provided good reason to do so. Recent free exercise decisions have justified attention to effects by insisting that laws that devalue protected interests merit heightened scrutiny. In doing so, they have endorsed a broad new theory of equality that applies to, and requires attention to effects in, the equal protection context. PubDate: Mon, 27 Mar 2023 07:52:27 PDT
Authors:Frederick E. Vars Abstract: Under the dramatically named “Slayer Rule,” murderers cannot inherit from their victims. This principle is so intuitive that it is easy to miss critical questions of implementation. One such question is: What if one cannot prove the murder with certainty' Should the Slayer Rule apply only to individuals convicted beyond a reasonable doubt of murder, or should some lower level of proof suffice' This essay examines those questions through an unlikely lens: the music of Taylor Swift. PubDate: Fri, 10 Mar 2023 09:00:41 PST
Authors:Maia Foster Abstract: Air pollution in U.S. subway systems poses a major threat to public health. People in subway stations breathe in dangerously high levels of dusts, called particulate matter. Current legislation does not effectively address this problem; in fact, the United States does not have a comprehensive indoor air quality law at all. Left unregulated, people regularly exposed to subway air pollution could suffer respiratory and cardiovascular issues and even premature death.To mitigate these health effects, some countries have imposed PM standards in subway systems and underground spaces. Others have standards covering all indoor spaces. In the United States, many subway systems have begun exploring technologies to filter subway air in the wake of the coronavirus pandemic. To support their efforts and innovation, the United States should enact legislation establishing a grant and loan program for subway systems’ air-purifying initiatives. Modeled after the successful Diesel Emissions Reduction Act, this law would adopt a carrot-based approach to effectively reduce subway air pollution, allowing each system to tailor initiatives to their unique characteristics. While the United States should explore a mandatory standards-based approach long term, it should prioritize this legislation to protect the public more quickly from this ongoing threat. PubDate: Fri, 24 Feb 2023 05:48:41 PST
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