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Donor-advised funds (DAFs) have enjoyed explosive growth in recent years, causing legislators and policy analysts to become increasingly interested in whether DAFs should be subject to more regulation and/or disclosure requirements. DAFs are a form of charitable giving in which donors transfer their cash or property to a DAF sponsor, giving up legal ownership but retaining “advisory privileges” which allow the donor (or other designated advisor) to make decisions about the investment and disbursement of DAF assets. Donors get an upfront charitable deduction because the DAF sponsor is itself a 501(c)(3) organization and the donor technically gives up dominion and control over their donation. But, because of the advisory privileges, DAFs operate in practice like a combination of a charitable investment, savings, and checking account. The donor decides whether or where to invest DAF funds and when, if ever, to disburse them to charities. This short paper examines the following arguments around DAF payout: First, and most importantly, this paper addresses the claim that DAF sponsors regularly payout in excess of 20%. Second, we apply this formula to the 2017 tax returns for all DAF sponsoring organizations, the most recent year for which a complete set of returns are available. We show that the formula used by DAF sponsors increased payout rates by 53% for all DAF sponsors (and by 56% for commercial DAF sponsors) over the payout rate that would have been derived using the proper method for calculating payout. Third, we explore the relatively new concept of flow rate. Finally, we explore how the existing measurements of DAF payout and flow rates overstate their benefits to charity because of the failure to account for DAF-to-DAF transfers.

The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire. This Working Paper—which will be continually updated to reflect current developments—will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the “Families First Coronavirus Responses Act”) passed by the house on March 14, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.

In 2017, the Federal Communications Commission adopted the Restoring Internet Freedom Order (RIF Order), which repealed the Commission’s two-year-old net neutrality restrictions. This action spawned a flurry of activity in state legislatures that sought to re-impose those restrictions at the state level and subject the RIF Order to a death by a thousand paper cuts. Nowhere was this state activity more prominent than California, where Senate Bill 822 became a vehicle for net neutrality advocates not only to resurrect the requirements of the now-defunct 2015 Open Internet Order, but also to impose additional regulations that even the Obama-era FCC had rejected. Unsurprisingly, the Justice Department challenged SB-822 in federal court in California, arguing that federal law preempted the state’s attempt to regulate the Internet from Sacramento. In response, California agreed to voluntarily stay enforcement of the statute while the D.C. Circuit heard Mozilla v. FCC, which was considering the validity of the FCC’s RIF Order. For almost two years, California’s bold net neutrality initiative has been in limbo, with supporters and critics alike waiting to see if the bill will ever amount to more than (in one commentator’s words) a “publicity stunt.” With the Mozilla litigation now complete, the day of reckoning is approaching – and the California court is likely to find that much, if not all, of SB-822 is preempted. At a minimum, the Communications Act expressly preempts most of the regulations that SB-822 places on wireless companies. More generally, the state law interferes with the carefully calibrated federal broadband policy determined in the RIF Order, and on that basis should face conflict preemption by the Supremacy Clause. These claims, which Mozilla left open, are fatal to much, if not all, of California’s attempt to regulate broadband network management practices.

What makes a constitution difficult to amend? The answer varies across jurisdictions. In the United States, for example, the threshold problem is getting two-thirds of Congress to initiate an amendment—a virtually impossibility in our present day given that Congress has a hard enough time agreeing by a simple majority to pass a simple law. In Australia and Switzerland, it is largely the combination of subnational approval and referendal ratification that complicates matters. In Canada—the subject of this paper—constitutional amendment difficulty derives from similar challenges associated with initiation and ratification but perhaps even more from the use of omnibus amendment bills that combine the good with the bad and give political actors as much a reason to vote in favour as to vote against. In this paper prepared for a symposium on “Rewriting the Canadian Constitution,” I suggest that amending the Constitution of Canada could become easier under a new single-subject rule that prohibits omnibus amendment bills but permits multiple single-amendment bills only if voted on separately and differentiated by subject-matter. Imposing a single-subject rule for constitutional amendments in Canada is likely to make the Constitution much more flexible in some important ways but perhaps much more rigid in others.

The future of economic and social rights is unlikely to resemble its past. Neglected within the human rights movement, avoided by courts, and subsumed within a conception of development in which economic growth was considered a necessary (and, by some, sufficient) condition for rights fulfillment, economic and social rights enjoyed an uncertain status in international human rights law and in the public laws of most countries. Yet today, under conditions of immense poverty, insecurity, and social distress, the rights to education, health care, housing, social security, food, water, and sanitation are increasingly at the top of the human rights agenda. Economic and social rights are now present in most of the world’s constitutions, most of the main human rights covenants, and are often given an explicit justiciable status. At the same time, as different legal traditions and regions embrace this shift, their highly integrated economies face a profound reckoning with economic justice. The future cannot be predicted; but neither can it be ignored. This paper, introducing the book’s 21 chapters, incorporates a detailed examination of constitutions, courts and international mechanisms of accountability. These signal a transformation in debates about human rights, democracy, law and development.

The Robert Morris library, the only known extant, antebellum African American–owned library, reveals its owner’s intellectual commitment to full citizenship and equality for people of color. Although studies of lawyers’ libraries have focused on large collections, this article provides a model for interpreting small libraries, particularly where few personal papers remain extant.

This paper examines the legal and policy relationships amongst international standards for GIs, food safety requirements, and voluntary claims related to a food’s attributes. The paper addresses those relationships within the context of international trade agreements protecting GIs, such as the 1994 TRIPS Agreement, the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and the chapter on intellectual property and geographical indications in the Transatlantic Trade and Investment Partnership (TTIP) currently under negotiation. Trade agreements also discipline food safety measures and non-GI indications of quality or safety such as “organic” and “GMO-free.” Accordingly, the paper also considers the extent to which international trade agreements such as the WTO Agreements on the Application of Sanitary and Phytosanitary Standards (SPS Agreement) and Technical Barriers to Trade (TBT) might interact with the analysis.

The American Library Association (ALA) Preservation Statistics Survey, a national survey on the preservation activities of cultural heritage institutions, was introduced in 2012 in response to the decision of the Association of Research Libraries’ (ARL) decision to discontinue its long-running preservation statistics program. This paper presents the history of both surveys, discusses the rationale for collecting national data on these activities, and how the data has been used. The paper also includes key results, derived from analysis of both surveys. The surveys suggest that institutional support for preservation activities has declined significantly since its peak in the early 1990s. Preservation programs continue to focus on text-based materials and seem to employ fewer nonprofessional staff than they did five years earlier. The benefits and challenges of conducting a voluntary national survey are also discussed.

This paper examines the legal and policy relationship reinforcement amongst international standards for GIs, food safety standards, and other claims of quality or safety. The paper addresses those relationships within the context of international trade agreements protecting GIs, such as the 1994 TRIPS Agreement, the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and the chapter on intellectual property and geographical indications in the Transatlantic Trade and Investment Partnership (TTIP) currently under negotiation. Trade agreements also discipline food safety measures and non-GI indications of quality or safety such as “organic” and “GMO-free.” Accordingly, the paper also considers the extent to which international trade agreements such as the WTO Agreements on the Application of Sanitary and Phytosanitary Standards (SPS Agreement) and Technical Barriers to Trade (TBT) might interact with the analysis.

Although at first glance French and U.S. inheritance laws appear to be diametrically opposed, this paper provides a deeper analysis. In doing so, it explains that nuances within both systems have made the laws more similar than they initially appear. U.S. inheritance laws, explicitly characterized by freedom of testation, include numerous substantive limits on how a testator may dispose of her property at death. Courts often use doctrines such as mental capacity, undue influence, and fraud to void wills that do not provide for the decedent’s children. Also, because over one half of all Americans die intestate, or without a will, children are provided for in this way as well. French inheritance laws, which on their face appear to require everyone to leave at least half of their property to their children, similarly allow for significant deviation from this rule. Some techniques, such as life insurance, tontines, and usufruct interests have been around for a while. Since 2006, however, the law has given French parents even greater ability to control the distribution of their estates. This paper examines French and U.S. inheritance law, with an eye towards these initial differences, and deeper similarities.

The Notice is a good first step. It creates bright-line standards that are easy to apply and that will eliminate much of the gray area regarding permissible political activity. Clearer lines will reduce the discretion on the part of the IRS. By decreasing the IRS's discretion, the regulation will reduce the opportunity for the IRS to be used as a political tool in an Administration's tool box. However, the Notice does not go far enough. Congress has established a regulatory regime that has as its central purpose the disclosure of any significant campaign contributions by individuals or firms. In recent years many organizations have exploited the confidentiality rules of § 501(c)(4) to evade that regime, to the detriment not only of U.S. political discourse but also the non-profit sector. The Final Rule should ensure that groups with significant partisan political activity cannot obtain exemption under § 501(c)(4), or indeed under any parallel provision of § 501. We believe, however, that groups carrying out "substantial" electioneering activities should generally be eligible for exemption under § 527, and that the IRS should make that clear in the Final Rule. The main consequence of any ruling denying § 501(c)(4) status based on the political activity of the organization, therefore, would simply be to require the disclosure of an organization's donors, and to ensure that the organization's political expenditures are disclosed contemporaneously with the election they seek to influence. Accordingly, the Final Rule should be designed in a way that channels organizations with any substantial amount of undisclosed electioneering activity into § 527. For example, we propose a strong presumption that any group with candidate-related political activity of more than 10% of its budget, or of more than an overall cap of some amount, such as $1 million, whichever is lesser, should be recognized as a § 527 political organization and not as a § 501c(4) social welfare organization

On paper the state-run lawyer disciplinary system in China serves multiple interests: client protection, maintaining the reputation of the legal profession, upholding the rule of law, and safeguarding the party-state authority. This Article assesses which of these interests dominates in the lawyer disciplinary process by analyzing 122 published lawyer discipline cases from Zhejiang Province from 2007-2015. These records of lawyer discipline evidence an authoritarian political logic of attorney discipline, with punishment most clearly serving to safeguard the Communist Party's rule by keeping lawyers in bounds and tightly tied to their law firms. Subordinate to this are other state interests such as upholding the legal system and rule of law, as well as private interests of protecting firm income. Client protection is a secondary interest at best, with only a handful of cases having clear client-protection goals. The dominance of party-state interests reflects not only the socialist legacy, but also the persistence of an authoritarian legality in contemporary China.

For its proponents, proportionality analysis is integral to a new "global model of constitutional rights." If economic and social rights are part of that global model, a suggestion supported by recent empirical analysis, there are numerous sites on which to establish the proportionality analysis. And yet, the comparative economic and social rights jurisprudence reveals little resembling proportionality analysis, otherwise so "ubiquitous" in constitutional rights adjudication. Instead, the adjudication of economic and social rights integrates notions of proportionality in a seemingly indirect faction, through giving substance to standards of "reasonableness," "appropriate measures," and "progressive realization...according to maximum available resources." These standards share with proportionality analysis the rejection of more content-driven, results-oriented, or rule-like conceptions of economic and social rights, such as the minimum core. But that rejection alone does not answer the question how proportionality, whether as principle or structured approach, relates to these new standards, particularly to that of reasonableness, a standard that now sets the framework for previously-absent international scrutiny on economic and social rights. In this chapter, which is part of a forthcoming edited collection, by Mark Tushnet and Vicki Jackson, on Proportionality: New Frontiers, New Challenges, I examine the relationship between reasonableness review and proportionality within the context of economic and social rights. Both standards hew closely to the ideal of a "culture of justification." Both too set out a measured assessment of the principle of proportionality, which we might summarize as the view that "the graver the impact of the decision upon the individual affected by it, the more substantial the justification that will be required." Yet they do so under methodologies that are critically different. Part I of the paper sets out the developing approach to reasona

This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.

This paper addresses two related questions. The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts that describe the Nineteenth Century conception of scientific methodology. This enables us to recreate not only the substance of Langdell’s theory, but also its method. Further, understanding its method allows us to ask crucial questions about justification: What is it that makes Langdell believe that his theory of contract law is correct? The second question addressed in this paper relates to legal theory and the use of doctrinal theories in legal decision making. As a pragmatist, I reject the idea that there is one form of legal reasoning. Instead I believe that the courts employ a variety of strategies to navigate between the demand for justice in the individual case and the need to develop general theories that can be used to predict future decisions. Doctrinal theories are one of these strategies and, without question, a very important one. In the final section I use what we have learned about Langdell to identify the way in which doctrinal theories work and to explain their success

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is partly a function of that order’s responsiveness to the claims of citizens for institutional recognition and/or action (or inaction); judgments of legitimacy are, in part, judgments about normative responsiveness; 2) Distortion effects inevitably occur when citizens formulate their claims and when institutions translate and process them; in a constitutional democracy, such effects widen when impermissible social asymmetries of freedom and equality become ossified in constitutional doctrine and discourse; 3) Political legitimacy and the promise of self-government depend on the capacity of the constitutional system to build self-corrective mechanisms as means for preserving its responsiveness capacity. Legitimacy judgments are not binary judgments, but judgments of degree that can fine-tune to the existence and efficiency of such mechanisms; 4) Openness to the experiences in self-government of other political communities (for instance, by using foreign law in constitutional interpretation) is a self-correcting mechanism – it can open access to a community’s own processes of self-government, and it should open access to its institutions. The paper presents these claims as elements of a cosmopolitan political philosophy of constitutional law.

Over half the states and several localities have enacted statutes and ordinances to regulate abuses in the residential mortgage market. The effect of these statutes is a matter of debate. This paper seeks to improve the understanding of this increasingly important issue and pays particular attention to the role that legal enforcement mechanisms play in this context. We created a legal index of laws governing mortgage lending terms and practices, giving each state an overall score for the strength of its laws. In addition, we disaggregated the index to create sub-indices along three dimensions: (1) the scope of loans covered by the laws; (2) the prohibited loan terms and practices; and (3) the strength of the legal enforcement mechanisms. We use these indices to determine the effect of anti-predatory lending laws-- using both total index scores and the scores using the sub-indices-- on loan applications, originations and rejections. To control for variations within state borders, we employ a geographic sampling approach that focuses on lending activity along state borders, including only loans that were originated in a county that is geographically along a state border and if at least one of the two abutting states has an anti-predatory lending law. We find that the extent of coverage, restrictions, and enforcement embodied in a state's legal framework is associated with significant changes in the probability that a subprime application is rejected and a subprime loan is originated. Coverage is associated with lower subprime rejection probabilities. Restrictions tend to increase the likelihood of rejection and hence retard originations in the subprime market. Finally, the key result in the analysis of enforcement is that stronger enforcement mechanisms reduce subprime rejection probabilities. We conclude the paper by discussing the possible implications of these findings, including how anti-predatory lending laws may have shaped borrower and lender behavior and how o

For decades, cities have invested in decaying neighborhoods, leading to increases in home values and home equity. As a result, these neighborhoods have become ready targets for predatory lenders, who market their abusive loans to financially unsophisticated homeowners with home equity and no relationships with traditional lenders. Some borrowers lose their homes; others forsake home repairs to avoid default and foreclosure. Neighborhoods that once were stable become littered with abandoned and neglected homes, resulting in increased crime, falling home values, rising demands for social services, and lower tax revenues. In the wake of the devastation done by predatory lenders, the question for policymakers is: what can be done? This paper seeks to answer this question. The paper opens by defining predatory lending. Next, the paper describes how the rise of securitization, deregulation of price terms, affordable lending incentives, bank closings, and historical credit discrimination together fueled the rise and institutionalization of predatory lending in the 1990s. Lastly, the paper evaluates different possible approaches to redressing predatory lending, including industry self-regulation, consumer education and counseling, Community Reinvestment Act oversight, criminal enforcement, existing private causes of action, and a suitability proposal

The current debate within corporate law is as fundamental as any time since the New Deal, when the great exchange between Merrick Dodd and A.A. Berle defined the issues for a generation of scholars. Today, the community of corporate law scholars in the United States is split between two groups. The first, heavily influenced by economic analysis of corporations, argues the merits of increasing shareholder power vis-à-vis directors. Another group, animated by concern for economic justice, challenges the traditional, shareholder-centric view of corporate law, arguing instead for a model of “stakeholder governance.” The enclosed article is an untraditional method to explore these debates. It comes in the form of a debate between two prominent scholars, one from each of the two major groups, on the audacious question, “Can Corporate Law Save the World?” Each of us has authored a paper comprising one-half of the article. Professor Greenfield, a leading proponent of “progressive corporate law” and the author of THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES (2006, The University of Chicago Press), uses this paper to offer an provocative critique of the status quo using organizational and regulatory theory. In his paper, Professor Smith, one of the nation’s leading advocates of increased shareholder power, contends that changes in corporate law cannot eradicate poverty, clean our air or our water, or solve “the labor question.” Indeed, he argues, the only changes in corporate law that will have a substantial effect on such issues are changes that will make matters worse, not better.

This paper proposes that fully procreatively just affiliations -– the ones which satisfy the criteria developed here -- deserve special support and recognition. It proposes that procreative justice requires such recognition. This paper proposes that it is unjust to conflate and revise the usual categories so as to confuse procreatively just affiliations with other forms. It discusses the harm that ensues.

This paper recounts a number of lessons learned in the course of serving as the Director of Public Charities for the Commonwealth of Massachusetts. It incorporates these lessons into a discussion of the proper analysis of charitable organizations. Should charities be analogized to for-profit firms or are they something that is essentially different? The paper argues that they lack many of the attributes of Coasian firms and that they should be considered as “consumption groups” that have different methods of accountability.

The recent bankruptcies of Catholic Dioceses are unprecedented. For the first time, Bankruptcy Courts must deal with the difficult question of who owns the parish church. In this paper, I will explore two possible sources of confusion about this question. The first is the non- commercial, charitable nature of the Church. The second is its organizational complexity. Resolving the confusion requires a familiarity with various different sources of law including charities law, bankruptcy law, trust law, and Canon Law. In this paper I address this issue by: 1. discussing why the equities and policies that govern charitable bankruptcies are different from those that govern commercial bankruptcies; 2. laying out a road map for determining ownership issues that indicates what sub-questions must be answered and in what order; and 3. discussing the role that each of the different sources of law plays in answering these questions. My conclusion is that, in most circumstances, individual parishes do have a significant ownership stake in assets that are given or dedicated for their use.

Among the grandest debates within corporate law is whether the dominance of Delaware is the result of a “race to the bottom” -- toward a legal regime that benefits managers at the expense of the shareholders -- or a “race to the top” -- toward an efficient, shareholder-centric governance framework. This paper argues that this debate is largely beside the point. Even if Delaware’s dominance is the result of a competition resulting in law that efficiently serves the interests of shareholders, it is nevertheless illegitimate. This is because the internal affairs doctrine, on which Delaware’s preeminence depends, in effect allows corporations to choose the corporate governance laws that will apply to them, whether or not the state they choose has any other contact with the corporation. This is inefficient as an economic matter and illegitimate as a democratic matter. Indeed, of the thousands of corporations with charters from Delaware, few have their headquarters or significant numbers of employees or shareholders there. Delaware law can therefore be crafted without attention to the political influence of any important stakeholder unless that influence can be transformed into market terms. Delaware law reaches beyond its borders to affect all the corporation’s stakeholders even though they have no political influence over what the laws are. The internal affairs doctrine has allowed Delaware to externalize the costs of its rules on other stakeholders and indeed other states. The central argument of this paper is that this practice of deferring to Delaware law is undemocratic. Indeed, if areas of the law can be evaluated on their susceptibility to democratic or political pressures, then corporate law must be among the least open to political influence. In a democracy, this should be seen as a serious flaw in the framework of corporate law. Because the internal affairs doctrine is merely a special exception to conflict of laws principles, individual states can simply chang

From the author's introduction: This paper grows out of my reflections on my own introduction to learning theory. In it, I hope to accomplish two things. First, I present a modest proposal for becoming a better teacher. My thesis is simple: by knowing more about ourselves and our own learning processes, preferences, and inclinations, we will become better teachers. We will discover why we have elected to teach as we do, and we will also uncover when we have been on automatic pilot, blithely accepting the role of law professor, as conceived by our institutions, our students' expectations, and our preconceived assumptions. Second, this paper is a kind of phenomenology of discovery about learning theory. This is not a didactic essay. It is a self-report of my own reading of the literature of applied learning theory. It is a story of self-discovery, a starting place for the harried law professor who needs a map of the learning theory terrain.

This paper illustrates that the shareholder primacy model is still the prevailing model especially as the proponents of the stakeholder model have not come up with a theoretically sound alternative. It is argued that all corporations’ principal stakeholders should be protected by the imposition of fiduciary duties on managerial decision makers. Homogeneity on corporate boards can reinforce thinking that leads to bad decision making. The findings of various researchers into behavioural economics are considered. It is pointed out that the interests of the shareholders are rarely, if ever, the same as those of other stakeholders. This supports the idea that a shift away from shareholder primacy is needed. The trade-offs that are often made in managerial decision making are represented graphically and discussed as an analytical tool supporting the central thesis that fiduciary duties with a broader range are the way to ensure that decisions take account of all relevant interests.

This paper analyzes the constitutional events in the summer of 2012 when Romania experienced the deepest constitutional crisis in the country’s post-communist history. It discusses the implications of these events for semi-presidentialism, a regime that splits executive power between the president and the prime minister, and which has become a popular choice for constitutional design in Europe and around the world. I ask how constitutional democracies that are still at a relatively early stage of political maturity can handle the pressures of ideological splits within the executive power. Is semi-presidentialism a good choice of regime for societies in transition to constitutional democracy? The article also approaches the crisis from the perspective of the European Union. After describing its complex role in the unfolding of the Romanian crisis, I ask about the intervention tools—legal and/or political—available to the Union in the event that one of its member states is at the brink of sliding into authoritarianism.

This essay argues that the current system of music licensing must be completely overhauled. At this time, songwriters are paid a mere pittance when their work is played through Internet streaming services. The paper traces the evolution of compulsory licensing from the early 20th century, when Congress put this system in place due to concerns over the monopolization of the player piano industry, to today. This essay shows how the separation between copyrights for compositions as opposed to public performances contributed to blanket licensing through royalty-collecting organizations like ASCAP and BMI, which — together with government intervention into pricing based on antitrust concerns via consent decrees — has led to an inflexible and tightly controlled market in this context. Last, the essay demonstrates how the focus on classifying streaming services like Pandora based simply on whether they are "interactive" or not relies on a misunderstanding of the substitution effects and hence decline in music sales that Pandora creates. Eliminating compulsory licenses would allow individual songwriters to set their own prices and negotiate with streaming services, including in ways that would allow for price differentiation grounded in factors such as song popularity. Giving songwriters the same control that copyright owners outside the music context already possess will ensure songwriters' ability to continue providing the public with the works it loves.

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Nothing in the United States Constitution is today formally unamendable. Yet it is worth asking whether the Constitution requires some form of implicit unamendability in order to survive according to its own terms. In this paper, I inquire whether anything in the Constitution — whose constitutional text, history and interpretation are rooted in the concept of popular sovereignty — should be regarded as informally unamendable. I conclude that, if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy. I nevertheless express some doubt about how political actors might reliably enforce an informally unamendable First Amendment. I suggest in closing that the optimal function of unamendability in modern constitutionalism is its expressive capacity, specifically that unamendability is more effective as a declaration of importance than as a referent for judicial enforceability.

The FCC’s new Open Internet rules seek to limit interference by broadband service providers in markets for Internet-based content and applications. But to do so, the rules may significantly reduce the amount of innovation possible in the broadband service market. An aggressive interpretation of the rules suggests that broadband providers are generally required to offer customers access to all lawful Internet traffic, or none at all. This paper explores the way in which this all-or-nothing homogenization of the American broadband product differs from innovative non-net-neutral practices that are taking root in other countries, particularly in mobile markets. Around the world, companies are offering consumers alternatives to traditional broadband access, including zero-rated or premium content, sponsored data, and social media plans, which can benefit consumers and enhance competition in both broadband and edge markets. As the FCC fleshes out its new standard for regulating broadband business practices, it should be careful that its rules do not preclude Americans from sharing in the global revolution currently taking place in telecommunications.

From the introduction: The following papers were given in 1994 at a panel sponsored by the Teaching Methods Section at the annual meeting of the Association of American Law Schools (AALS). The papers are loosely organized around two particular claims. The first claim is that law school has a substantial socializing effect on the students who attend. The second claim is that it is desirable for law school teachers to adopt practical strategies for countering this effect and for challenging prevailing law school values. Both of these claims are controversial. For example, there are some who suggest that law school is (and should be) a kind of glorified trade school. They argue that law schools provide a neutral set of skills that are independent of any ideological orientation and useful for a wide range of political objectives. Similarly, there are some who are distrustful of any attempt to influence-or as they might put it "brainwash"-students with respect to personal or political values. While the contributors to this symposium have a wide range of teaching styles and objectives, they are united in opposing the neutral skills model and in their commitment to the practical aspects of "teaching values."

From 2007 through 2011, the United States housing market suffered a severe imbalance in supply and demand due to an excessive number both of foreclosed homes and homes awaiting foreclosure in the shadow housing inventory. Foreclosure prevention can help reduce the shadow housing inventory by keeping troubled mortgages from entering that inventory to begin with. The loan modification experience post-2008 yielded four main lessons about the best way to optimize foreclosure prevention. First, servicers should design loan modifications to lower monthly payments, including through principal reduction whenever appropriate. Second, servicers should evaluate loss mitigation as soon as possible following delinquency. Third, when distressed borrowers lack the cash flow for cost-effective loan modifications, servicers should explore other ways to keep those homes occupied, such as short sales, in order to avoid unnecessary spillover effects to the surrounding community. Finally, subsidies are not enough alone to overcome the frictions to an optimal number of loan modifications. The paper closes by discussing the implications for policy reform.

Although many commentators have called for increased efforts to incentivize organ donations, theorists and some evidence suggest these efforts will be ineffective or even could perversely crowd out altruistic efforts. Prior papers examining the impact of tax incentives for donations generally report zero or negative coefficients. We argue these studies incorrectly define their tax variables, and rely on difference-in-differences methods despite likely failures of the requisite parallel trends assumption. We therefore aim to identify the causal effect of tax incentive legislation to serve as an organ donor on living related and unrelated kidney donation rates in the U.S states using more precise tax data and allowing for heterogeneous and time-variant causal effects. Employing a synthetic control method, we find that the passage of tax incentive legislation increased living unrelated kidney donation rates by about 52 percent in New York relative to a comparable synthetic New York in the absence of legislation. We show that this causal effect is robust to the exclusion of any particular state as well as to the use of a very small number of comparison states.

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of a new constitutional convention. Despite its obsolescence, the desuetudinal constitutional provision remains entrenched in the constitutional text. Consequently, although informal amendment generally leaves the constitutional text entrenched, unchanged and politically valid, this particular variation of informal amendment leaves the text entrenched and unchanged but renders it politically invalid. In this paper, I illustrate and theorize the phenomenon of informal amendment by constitutional desuetude with reference to the Canadian Constitution, I construct an analytical framework for identifying constitutional desuetude in other jurisdictions, I distinguish constitutional desuetude from other forms of obsolescence, and I also explore the costs of constitutional desuetude.

The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the benefits of local knowledge and experimentation in a diverse and innovative new marketplace. This paper examines the benefits of a cooperative federalism approach to electricity regulation. The challenges facing renewable energy are regional in scope, and there is value in preserving state and local voices in policymaking decisions. It examines three aspects of the renewable energy debate—siting generation facilities, building transmission lines, and adopting demand-side renewable energy standards—and, for each, explores governance structures that would promote greater regional cooperation without sacrificing the benefits of decentralized government.

The Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworks for addressing the problem of plurality precedent, little existing commentary has focused on a deeper and more fundamental question—namely, what makes plurality precedent so confusing? Answering this question is not only critical to developing a more coherent and administrable doctrine of plurality precedent but is also a useful prism through which to examine our shared understanding of precedential authority more generally. This Article argues that plurality decisions are so confusing because they expose a latent ambiguity in our law of precedent. Looking to the debates surrounding plurality precedent reveals at least three distinct—and to some extent, mutually inconsistent—models of precedential authority. The first of these models, the “judgment model,” is closely connected to the traditional common law view, which grounds the precedential authority of judicial statements in the ability of those statements to explain the particular judgment issued by the court in the case before it. The second model, the “prediction model,” views the holding of a case as the rule that best predicts the future behavior of the court based on the expressed views of the participating judges. Finally, the “pronouncement model” focuses on the judiciary’s law declaration function, viewing all majority-endorsed legal rules as entitled to precedential force regardless of their connectedness to the court’s judgment or their capacity to predict the court’s future behavior. Exposing the ambiguities inherent in plurality precedent does not provide a clear answer to how the conflict among the competing models should be resolved. But doing so may help eliminate

Declining worker power—and increasing employer power—has suppressed wage growth and increased inequality. This decline is reinforced by contradictions in law that strengthen employers’ bargaining leverage over workers. This Article exposes those contradictions, tracing how employers have exploited the consumer rights revolution to devise brand protections and defenses that justify their control over vertically disintegrated labor markets. The Article takes a systemic view of intellectual property, antitrust, and work law to uncover their interconnected protection of employers’ brand rights at the expense of worker power. Based on the insights derived from this analysis, it proposes a suite of doctrinal and regulatory reforms to work law, antitrust doctrine, and trademark licensing, all as a means of “defetishizing” brand and reversing the trend of declining worker power.

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While this perspective unquestionably has value, it ignores the adjudicative context in which the vast majority of litigated constitutional questions are finally resolved. The question of whether and to what extent lower courts should use originalism in their own decisionmaking is hardly an insignificant one. Although lower courts are strictly bound to follow controlling Supreme Court precedent, these strictures leave open a wide domain in which the choice between originalism and other modes of decisionmaking might plausibly affect the content of lower courts’ decisions. But lower courts face a number of institutional limitations and challenges that do not directly confront the Supreme Court, including greater time and resource constraints and the inability to overrule directly controlling nonoriginalist precedents. This Article aims to examine lower court originalism by looking to a set of values commonly associated with our system of vertical stare decisis—including uniformity, accuracy, efficiency, percolation, and legitimacy—as well as a set of values commonly associated with originalism itself—including popular sovereignty, judicial restraint, desirable results, and positive law. In general, the use of originalism by lower court judges is likely to be more costly and

Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling. This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift their wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the breakup of the Bell System in the 1980s on the Communications Workers of America, gutting union density within the telecommunications industry from 56% pre-breakup to 24% by 2001. Breakups, much like workplace “fissuring”, can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions. The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theo

We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of th

After 10 years of legislative gestation, the Great and General Court passed, and Governor Charlie Baker signed, the Massachusetts Noncompetition Agreement Act (“MNAA” or “Act”), G.L. c. 149, § 24L added by St. 2018, c. 228, § 21, effective prospectively only (§ 71) for agreements entered into on or after Oct. 1, 2018. The Act dramatically reduces the number of Massachusetts employees who can be subjected to an enforceable noncompetition agreement, and even when such agreements are permitted, employees are afforded stronger substantive and procedural protections than in the past, while employers are limited to substantially reduced post-employment restrictions. The Act represents a paradigm shift in favor of employees, particularly hourly workers, but employers retain many options and may benefit from a perhaps greater clarity and certainty in drafting valid and enforceable noncompetition agreements. The common law will continue to have vitality, however, because the legislature chose to address only employee noncompetition agreements, and even as to those agreements, it left many related restrictions in place and codified aspects of the common law that will continue to require case-by-case exposition. Thus, an understanding of the common law background assumed to continue to govern unless changed by the Act (or later amendments), is necessary to a full understanding of the Act. In the midst of this legal turmoil, and in discussing a statute for which the interpretive process of court decisions has barely begun, the authors necessarily venture few definitive conclusions about the MNAA. Instead, we attempt to describe the Act’s most important features and focus on some questions that remain to be resolved, in the belief that at this stage of the legal process most practitioners are attempting to do the same in order to guide and protect their employer and employee clients.

In the decades after the end of the Civil War, avowed white supremacists across the South sought to “redeem” their state and county governments from the clutches of the hated “radicals” who had taken control during Reconstruction. These Redeemers developed an approach to local power and local control that served their broader political goal of reestablishing white supremacist rule. In their effort to ensure that white citizens were not subjected to “negro rule,” they developed a “Redemption Localism” that consistently sought to limit local power, curtail local democracy, and defund or eliminate local services. This Article tells the story of Redemption Localism as it operated in one state: North Carolina. But I argue that this story has much to teach us about localism across the post-Civil War South and about our localism today. While much of the scholarly conversation about localism focuses on the virtues (and vices) of local control versus centralization, the question for Redeemers was never whether, as an abstract matter, local control was preferable to centralized control. Rather, at decision point after decision point, the question was how the balance between local and state power could be manipulated and adjusted to protect the Redeemers’ political power and further the struggle for white supremacy. This instrumental attitude towards localism remains familiar today as the tools and structures of local power are manipulated to suppress Black voting power, dilute the voices of multiracial local democracies, and maintain existing distributions of power, wealth, and privilege.

Immigration detainees and their advocates have a Faustian Bargain: they may trade the physical walls of jail for the virtual walls of electronic monitoring. But they are merely begging for a different form of punishment and control, since electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive. Its use also facilitates replacing a regime of over-detention with one of over-supervision, and becomes the means by which immigration enforcement authorities surveil immigrant communities. The Supreme Court’s immigration detention doctrine has set up this bargain by succumbing to the plenary power’s defenders. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities. Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal justice system, this “middle ground” ceded too much ground. This article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides.

My purpose in the Essay is to explore the integrative nature of Perry’s writings. Perry’s work highlights and acknowledges the communally informed moral-political judgments that are at stake in Fourteenth Amendment jurisprudence. Perry’s ability to draw on different sources and perspectives allows him to cut across rigid jurisprudential and ideological lines in his approach to constitutional controversies, such as abortion and same-sex marriage. In so doing, he may be able to reach the significant portion of Americans in the political and moral middle who do not line up fully behind either side in the culture wars.

Almost everyone who reads these words is an institutional insider in some form. Those of us who aspire toward transformation, liberation, and resistance from our institutional settings are forced to confront Audre Lorde’s striking admonition that “the master’s tools will never dismantle the master’s house.” For some, finding themselves in the master’s house is a spur towards purism—a rejection of institutional power in search of a “pure” remove from which to critique it. For others, it is a dispiriting check on their aspirations and an invitation to sullen fatalism. This Essay questions whether we are bound to the hard consequences of purism or whether there are avenues within our institutional infrastructure that allow us to pursue change with radical pragmatism. Canvassing my own historical work on the struggle against slavery in the 1850s, I advance the beginning of an answer: it may be that it is impossible to revolutionize the institutions we work in as insiders, but it is possible for institutional actors to hold deliberative space within their institutions for transformational and radical imagination. By deliberative space, I mean space held open for conversation, democracy, and participatory deliberation. None of us, alone, can imagine our way out of the master’s house. But together, by stepping back and making space, we may be able to open a commons in the master’s house where we listen, dream, and challenge each other.

The Financial Stability Oversight Council represented an innovative approach to the problem of systemic risk in the American economy. It also represented an innovative form of cooperative federalism. By grafting state regulators onto the Council as nonvoting members, Congress hoped this new federal super-regulator would draw upon a reservoir of state expertise and local knowledge so that the Council’s final decisions reflected a collaborative effort between the nation’s top experts at the federal and state level. But looking back over the first decade of the Council’s operations, it is clear that this experiment failed to work as Congress intended. Federal decisionmakers consciously minimized the role of their state counterparts and asserted jurisdiction over America’s largest insurance companies, stepping confidently into an industry that was historically the prerogative of the states over the objection of the Council’s state regulator members. Ultimately, the D.C. district court vacated the Council’s overreach, citing the very same arguments pressed by state regulators that were disregarded by the Council during its deliberations. By publicly dissenting from the Council’s decisions, state regulators planted seeds of doubt that would ultimately lead the Council to abandon its efforts. The Council’s foray into insurance regulation reflected not the collaborative consensus of cooperative federalism, but a more discordant process in which state officials work within a federal system to resist policies with which they disagree—a phenomenon known as “uncooperative federalism.” This Article critically examines the role that state regulators could, and did, play during the Council’s first decade of deliberations and explores the ramifications of that experience for theories of cooperative and uncooperative federalism. The Dodd-Frank Act’s experiment with integrating state regulators at the federal decision-making level did not work as Congress hoped, but it inadvertently