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The flexibility to renegotiate can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve to enter into contracts earlier and realize the advantages of longer-term relationships. Otherwise, those parties might decline to contract or delay until those opportunities realize, thereby foregoing the benefits of long-term risk allocation or reliance investments. The parties decide not only whether, but also when, to make legally binding commitments to each other. Courts should be more lenient in enforcing contract modifications that, prompted by a shift in bargaining power, may have only a redistributive effect. Parties can design under-compensatory damages that would provide a credible threat of breach ex post to facilitate ex post modification. Requiring good faith in modification (along with damages) can constrain possible holdup and protect reliance investments and risk allocation.
The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is an instrument of power. The Constitution facilitates popular control over material forms of power through distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits. Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data.
Eviction cases make up over a quarter of all cases filed in the federal and state civil courts and have enormous consequences for tenants, who are nearly always unrepresented by counsel. These cases overwhelmingly settle, yet settlement scholars have entirely overlooked eviction both empirically and theoretically. The Article presents results from the first empirical study of eviction settlement negotiations. The study involved rigorous analysis of an original dataset of over one thousand hand-coded settlements, observations of settlement negotiations in the hallways of housing court, and dozens of interviews. The findings demonstrate that unrepresented tenants—who make up the vast majority of tenants in the eviction system—have no meaningful influence over settlement terms. Rather, the terms are set by landlords and their attorneys. Drawing on the empirical findings and scholarship about contracts of adhesion, the Article develops the theoretical concept of “settlements of adhesion.”
The negative moral emotions of guilt and shame impose real social costs but also create opportunities for policymakers to engender compliance with legal rules in a cost-effective manner. This Essay presents a unified model of guilt and shame that demonstrates how legal policymakers can harness negative moral emotions to increase social welfare. The prospect of guilt and shame can deter individuals from violating moral norms and legal rules, thereby substituting for the expense of state enforcement. But when legal rules and law enforcement fail to induce total compliance, guilt and shame experienced by noncompliers can increase the law’s social costs. The Essay identifies specific circumstances in which rescinding a legal rule will improve social welfare because eliminating the rule reduces the moral costs of noncompliance with the law’s command. It also identifies other instances in which moral costs strengthen the case for enacting legal rules and investing additional resources in enforcement because deterrence reduces the negative emotions experienced by noncompliers.
In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.
Historic discrimination in the process of siting and constructing physical infrastructure has sacrificed the Black communities that bear the costs associated with new roads, power lines, and sewage plants while receiving few of the benefits. This Essay advances a "community equity" framework to recognize and protect the sources of value that people hold in their communities. This approach looks beyond the traditional domains of civil rights and land use law. Instead, it embraces analogies in public nuisance and common law torts doctrines as mechanisms for recognizing community harms above and beyond the aggregate of individual claims.
In Woodford v. Ngo, the Supreme Court cemented the judicial assumption that most prisons have effective and navigable internal grievance procedures within the doctrinal rules surrounding the Prison Litigation Reform Act's (PLRA) exhaustion requirement. Reliance on the assumption has contributed to a body of PLRA exhaustion doctrine that maps poorly onto the factual realities of the prison context and requires constant clarification by the Supreme Court. Indeed, the Supreme Court has been called upon twice in the past decade to sort out the mess of doctrinal rules governing PLRA exhaustion, first in Ross v. Blake and just this year in Perttu v. Richards. Examining the Court's path to Ross and Perttu, this Comment argues that the Court's reliance on the assumption mandated in Woodford blinded it to the potential constitutional problems generated by Ross, which led to the circuit split at issue in Perttu. Thus, the Court must clarify the boundaries of PLRA exhaustion for the second time in fewer than ten years. Efficiency is one of the core purposes of PLRA exhaustion, and the Supreme Court’s perpetual cycle of clarifying (and reclarifying, and reclarifying again) its construction of a single statutory provision fails to serve that end.
In Snyder v. United States, the Supreme Court held that a federal criminal statute covers only bribes, not gratuities. The key issue in factually similar cases is whether a quid pro quo agreement occurred. The Snyder Court provided no guidance on this issue. This Comment responds by turning to antitrust law. Antitrust faces the same problem as bribery law: determining whether an illegal agreement occurred when both parties benefit from it. Antitrust has developed several “plus factors” to explain what circumstantial evidence suffices to prove an illegal agreement. This Comment uses that antitrust framework to propose ten bribery plus factors.
In 1977, a company convicted of conspiring with the mob asked President Carter for a pardon. The government speculated that the President could so exercise the pardon power, but ultimately no pardon ever issued. Nearly fifty years later, President Trump has pardoned a company convicted of violating the Bank Secrecy Act. People are again speculating that the pardon power covers companies, but few can offer evidence either way. History shows that the pardon power covers companies. Before the Founding, the King would often pardon corporations. Both the city of London and the Massachusetts Bay Company were pardoned before the Founders were even born. This tradition was the background against which the Pardon Clause and many of its state analogs were drafted. That the President can pardon companies might feel surprising or even unsettling. But the prerogative fits comfortably into the nation's separation of powers. Congress can make exercising the power less attractive by withholding refunded fines or shifting crimes to civil infractions. These checks come with more tradeoffs when exercised int he context of human beings, which might explain why Congress has not exercised them so far.
When prisoner officials burden the free exercise rights of prisoners, prisoners can seek recourse under 42 U.S.C. § 1983. However, due to the specialized and restrictive nature of prisons, courts adjudicate these claims under a reasonableness test set out in the case Turner v. Sadfley instead of a strict scrutiny standard. While circuits agree on using the Turner test for prisoner free exercise claims, there is a deep circuit split on the proper threshold test for these types of claims. While some circuits hold that inmates need to show that their religious practice was substantially burdened, other circuits hold that inmates just need to show that their religious practice was sincere. These threshold tests produce significant differences in how prisoner free exercise claims are litigated in court. After exploring the relevant Supreme Court guidance, this Comment aims to settle the split by examining each threshold test on its respective merits, considering neutral criteria such as screening ability, adherence to judicial capacity, and workability.
The constitutional text seems to be missing a host of governmental powers that we take for granted. The Supreme Court has suggested the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article shows that the “concomitants of nationality” idea reflects an important and longstanding feature of U.S. constitutional law: a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law.
In this Article, Yaron Covo argues that disability rights law in the United States is shaped not only by civil rights statutes but also by contract law doctrines. Contract law surfaces in the disability rights context through judicial determinations of accommodations negotiations and spending clause language in disability rights statutes. The Article argues that this intertwining has eroded rights under statutes meant to promote equality and protect vulnerable classes. The Article concludes with two recommendations: replacing the “individualized” negotiation model with a uniform model and adding certain mandatory rules and defaults in the disability rights context.