William Araiza
Professor of Law
Animus and Its Discontents, 71 Florida Law
Review 155 (2019)
ANIMUS HAS EMERGED as a favored— yet controversial—doctrinal tool of courts committed to protecting individual rights. Araiza, author of Animus: A Short Introduction to Bias in the Law (NYU Press, 2017), presents an approach to animus that both fits the Supreme Court’s analyses of the issue and harmonizes it with its approach to closely related historical doctrines. This allows courts to competently detect animus while mitigating the worst effects of an animus finding on public discourse on deeply contested concepts, securing modern equal protection law on a firmer, more historically legitimate foundation.
Julian Arato
Associate Professor of Law
The Private Law Critique of International
Investment Law, 113 American Journal of
International Law 1 (2019)
ARATO ARGUES that investment treaties subtly constrain how nations organize their internal systems of private law—including laws of property, contracts, corporations, and intellectual property. They do so on a one-size-fits-all model, disregarding the wide variation in values reflected in these discrete legal institutions. Moreover, investor-state dispute settlement exacerbates these constraints, further distorting national private law arrangements. This hidden aspect of the system produces problems of inefficiency, unfairness, and inequitable distribution that have eluded the regime’s critics and apologists alike.
Anita Bernstein
Anita and Stuart Subotnick Professor of Law
Minding the Gaps in Lawyers’ Rules of
Professional Conduct, 72 Oklahoma Law Review 125 (2019)
AN EXAMPLE of a way in which regulators “fill the gap” in rules of conduct is a comment to Rule 1.1 of the ABA’s Model Rules of Professional Conduct added in 2012 that tells lawyers that competent representation now includes knowing the risks and benefits of “relevant technology.” Bernstein proposes that artificial intelligence could be a source of guidance to individual lawyers, locating instances of inadvertence before they occur. She cites examples of how the profession can (and does) use this technology to help mind that gap and recommends continuing legal education as a source of expansion.
Susan Hazeldean
Associate Professor of Law
Privacy As Pretext, 104 Cornell Law Review __
(forthcoming 2019)
ONE POTENT WEAPON used to oppose LGBT rights is the claim that anti-discrimination protections for LGBT people undermine privacy because they permit transgender people to use facilities that accord with their gender identity. Hazeldean argues that this rhetoric echoes a troubling history of using privacy concerns to justify unequal treatment of women. It also reifies negative stereotypes about women, undermining sex equality and making all female-identified people more vulnerable to discrimination, mistreatment, and assault.
Catherine Y. Kim
Professor of Law
An Empirical Study of Political Control over
Immigration Adjudication (with Amy Semet), 108
Georgetown Law Journal __ (forthcoming 2019)
KIM AND SEMET present the first comprehensive empirical assessment of the extent to which immigration judges decide cases on the basis of a presidential administration’s political preferences rather than by independently assessing the legal merits of a given case. Using an original data set of over 550,000 removal proceedings, they found that the identity of the administration that appointed an immigration judge was not a statistically significant predictor of the likelihood of an immigration judge ordering removal. However, the administration in control at the time of decision is a statistically significant predictor of removal rates.
Adam Kolber
Professor of Law
Not-So-Smart Blockchain Contracts and Artificial
Responsibility, 21 Stanford Technology Law
Review 198 (2018)
“THE DAO,” the first high-profile decentralized autonomous organization, was formed in 2016 to operate like a venture capital fund for the cryptocurrency space. However, a bug in its smart contract code was exploited to drain more than $50 million in value. Some critics alleged that since “the code is the contract,” the hacker did nothing wrong. Kolber argues that the code does not reflect the entirety of the parties’ agreement, and that unadulterated commitment to “the code is the contract” slogan increases “artificial responsibility” and its associated risks.
Brian Lee
Professor of Law
Uncompensated Takings: Insurance, Efficiency,
and Relational Justice, 97 Texas Law Review 935 (2019)
THE FIFTH AMENDMENT requires the government to pay “just compensation” when it takes private property through eminent domain. Prominent scholars, however, have argued that optimally the government would pay nothing for taken property. Treating takings compensation as a form of government-provided insurance, they argue that owners should be left to purchase that insurance from private companies. Lee argues that both the standard justifications for requiring government compensation and the arguments challenging that requirement have overlooked the importance of a distinct form of “relational justice.”
James A. Macleod
Assistant Professor of Law
Ordinary Causation: A Study in Experimental
Statutory Interpretation, 94 Indiana Law Journal 957 (2019)
MACLEOD REPORTS the results of a nationally representative survey of nearly 1,500 jury-eligible laypeople, testing the Supreme Court’s recent pronouncements about the ordinary meaning of causal language in similar criminal and statutory tort settings. The results reveal clear and consistent patterns of causal attribution and ordinary usage patterns that squarely contradict the Court’s ordinary meaning determinations, raising serious concerns about the outcomes in recent criminal and tort causation cases.
Elizabeth Schneider
Rose L. Hoffer Professor of Law
Sex, Trump, and Constitutional Change
(with Helen Hershkoff), 34 Constitutional
Commentary 43 (2019)
SCHNEIDER AND HERSHKOFF explore women’s resistance to the Trump administration’s policies, examining the anticipated impact of the policies and showing that they are likely to exacerbate gendered trends of social and economic disadvantage. The authors look at the lower federal courts and the Federal Rules of Civil Procedure as a pathway through which social movements translate constitutional aspirations into constitutional doctrine. They argue that activists must take account of procedural rulings that potentially blunt the communicative force of a social movement, and thereby diminish its legal and political potential.