We have undertaken the first systematic, cross-state investigation of the relationship between Section 2 of the Voting Rights Act and Native representation. Though it is not necessary for Native representation, Section 2 remains an important contributor. It also contributes to the packing of Native voters: safe Section 2 districts-in which Native voters constitute a majority-decrease Native influence in surrounding districts. We provide novel empirical support for a longstanding critique of Section 2's focus on minority ability to elect, not their influence. Because Native communities have relatively small populations, the focus on electability can impose especially harsh trade-offs on influence.
This paper is a response to Christopher Lewis's recent paper on lex talionis. I claim that Lewis's interpretation cannot answer some of the questions that it needs to. In particular, we need to understand what our fundamental motivation is for subscribing to a principle of proportionality in the first place. Facing this kind of question head on is the only way to rehabilitate the principle of lex talionis-if indeed, it merits rehabilitation.
This paper defends the view that both constitutional provisions-norms that are not dependent on our choices-and statutory provisions-norms that are contingent on our choices-are necessary features of a liberal democracy. We make the case for institution-dependent goods, arguing that some goods depend for their existence on being produced by the right law-making institution with its own characteristic deliberative process. Hence, we conclude that individuals may sometimes have an interest (or even a right) that their legal rights be protected by a certain institution, say, the legislature, rather than another, say, the constitution, and vice versa.
Legal reform can be challenging due to the volume, complexity, and interdependence of laws, codes, and records. One salient example is racially restrictive covenants. In 2021, California mandated that counties identify and redact such covenants, but implementation has proved challenging, with 84 million pages in Santa Clara County (SCC) alone. Through a partnership with SCC, we develop an open, accurate, and fast language model-based pipeline to solve this problem. Our model is deployable elsewhere with minimal resources, fundamentally altering the cost-benefit calculus of such policy reform. We estimate one in three SCC properties were subject to racial covenants in 1950.
Should parental rights block state efforts to influence parenting or frustrate parental goals? Using examples of public-school-opt-out denials and non-disclosure of a child's gender expression as examples, I argue they should not. When parents harm children or society, governments may steer parents or subvert parental aims. The article considers and rejects claims that steering and subversion lack neutral justification, corrupt parental decision-making, facilitate abuse of state power, or undermine the values of intimacy and nurturing that parental rights are meant to protect. It also reframes parental rights as claim rights against state coercion, but as privileges against children.
We propose a unified framework to explain the key problems underlying corporate bankruptcy law. Creditor rights take two primary forms: the right to take assets from the debtor and the right to block transfers involving the debtor. Taking and blocking rights control agency problems, such as value-diverting transfers by management. But in financial distress, one creditor's rights can impose costs on the others. Multiple taking rights create the well-known commons problem: creditors can race to the debtor to collect, potentially forcing the liquidation of a valuable firm. Bankruptcy law can stay the creditor race, but a stay introduces one of two alternative problems. Replacing taking rights with blocking rights creates an anticommons problem of holdout and costly delay. Holdout problems can be mitigated by removing blocking rights for some creditors. But without taking or blocking rights, creditors lose essential protection against the very agency problems their contracts try to prevent. Bankruptcy law's changes to nonbankruptcy rights come in three major forms: a stay (to address commons problems), forced exchanges of rights (to address anticommons), and limits on controllers' transacting powers (to address agency). But each intervention exacerbates at least one of the other two problems. Thus, we call these three problems-commons, anticommons, and agency-bankruptcy's trilemma: the law cannot solve all three at once. Our framework provides a powerful lens for analyzing complex contemporary issues, such as "Texas two-step" bankruptcy filings, and for understanding differences in bankruptcy laws across countries.
Fair lending's disparate impact doctrine aims to address lending disparities. But which disparities? Traditional fair lending has narrowly focused on equal outcomes-examining differences in loan approval rates or interest rates. However, this singular focus overlooks other dimensions of disparities that are essential for fair credit access. This article challenges the conventional emphasis on equal outcomes, demonstrating how it has failed to address deep-rooted inequalities in traditional credit allocation while also stifling innovation in machine-learning and alternative data. We argue that disparities in the validity of creditworthiness predictions-the accuracy with which a model identifies creditworthy applicants-importantly impact equal access to credit and, in particular, the extension of credit to the creditworthy. Despite mounting empirical evidence of the harm of validity disparities, traditional fair lending enforcement inadequately recognizes this disparity dimension, a gap that may become increasingly harmful as lending decisions rely on advanced statistical methods. Future regulatory guidance, enforcement, and supervision should explicitly recognize validity inequalities across protected groups while addressing the accompanying challenges of this more comprehensive perspective on disparities, which is essential for equitable credit allocation.
In this article, I operationalize the classical retributive formulation of proportionality-lex talionis, or ``an eye for an eye''-to give some conservative estimates of what it might entail as a limit on the severity of permissible punishment. Respecting lex talionis would entail a radically lenient transformation of the criminal legal systems of the United States (and many other countries), reducing incarceration for nonhomicide offenses by at least an order of magnitude.
When an officer challenges her removal by the president, what relief is available? This article shows that the appropriate remedy will typically be a declaratory judgment. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, there should be a presumption that the federal courts will prevent her removal during the pendency of the litigation. Otherwise, the presumption should be against interim relief. This approach is grounded in the principles of equity, and it prevents "flipping" back and forth in who occupies the office during the litigation.
The thesis of this Article is that the ESG movement has been stunted by the failure to appreciate a trilemma: you cannot have responsive governance, liquid shares, and a credible commitment to social mission. The Article provides a novel descriptive account of corporate purpose and develops a transaction cost explanation for the collective action problem faced by pro-social investors. The Article identifies institutional solutions-and their trade-offs-for founders and investors that prefer to establish pro-social businesses. The analysis justifies business judgment rule review of disputes about corporate purpose and produces counterintuitive insights into corporate governance matters.
Traditional approaches for documenting the harm of gerrymandering emphasize collective representation by legislatures, minimizing the relationship between individual voters and their respective representatives. Federal courts have struggled to map collective accounts onto cognizable constitutional harms, reflecting a discomfort evaluating a system of representation inescapably rooted in geographic districts using diagnostics that treat districts and their boundaries as an inconvenience rather than an intrinsic feature. A normative account of representation and accountability rooted in the dyadic relationship between voters and their legislators addresses the exact harms that courts have articulated yet struggled to substantiate. We derive a formal model of dyadic representation that yields a measure of disparities among different voters, including those divided by partisanship. We then compare enacted plans in four states against two million simulated counterfactuals, demonstrating how conclusions about the harms from gerrymandering may be highly sensitive to political factors such as polarization and officeholder motivation.
Data technology is increasingly deployed to assign safety scores to people and products. Could these scores be used to apportion liability for accidents? Instead of liability based on ad-hoc care level (the negligence rule), "safety score liability" imposes liability commensurate with the habitual propensity to behave unsafely. This article describes how such a regime works, the incentives it creates, and the barriers it faces. It demonstrates its application to the most common torts-auto accidents. Safety score liability offers a novel foundation for the notion of fault in tort law, with surprisingly strong incentives for care, and an effective scheme for compensating victims.
A long-held egalitarian view is that formal equality-the absence of formal legal distinctions based on the material resources of individuals-is regressive. If legal rules are the same for the rich and the poor, the rich benefit and the poor suffer. This Essay argues that this view is mistaken. Far from being synonymous with laissez-faire, a commitment to formal equality provides a counterweight to the key neoliberal maxim that regulation of the market economy should focus on efficiency alone. Moreover, a new view of formal equality offered here reveals a key advantage of predistribution over redistribution: Explicit redistribution is formally unequal, while predistribution can be achieved using only formally equal rules.
In a substantial majority of states, invitees may bring concealed weapons onto private property unless the owner expressly tells them that firearms are not allowed. After the Supreme Court's Bruen decision, five states flipped the presumption, enacting statutes that prohibit bringing firearms onto other people's property without the owner's express consent. These statutes have been attacked as violating the Second Amendment. While the Ninth Circuit upheld the constitutionality of the "no-carry" default, the Second Circuit and other lower courts have enjoined application of the law with regard to private property open to the public. This article, after analysing the reasoning of the courts, proposes a legislative fix. States can enact "affirmative choice" rules which require commercial establishments, as a condition of doing business, to state whether or not they want their customers to be allowed to bring concealed firearms into their stores. An affirmative-choice requirement avoids constitutional concerns that some courts have had with a "no-carry" presumption because the ability to bear arms on private property would be restricted only when the landowner affirmatively so chooses. Without state action restricting gun rights, the statutes would not meet the Bruen threshold requirement to trigger Second Amendment scrutiny. The article explains why affirmative-choice laws are likely to better effectuate the preferences of landowners and why such laws would not pose compelled speech concerns.
The Supreme Court of the United States (SCOTUS) issues 10-15 % of its opinions unsigned, concealing authorship. Traditionally, unveiling authors required the posthumous release of Justices' personal papers. We trained our AI algorithm to achieve real-time authorship probabilistic identification, encompassing 17 Justices and 4,069 opinions from 1994 to 2024. Our algorithm identified the likely authors of the March 2024 Trump v. Anderson case, which enabled Donald Trump to run for office. Moreover, our algorithm unveiled the likely authorship in significant unsigned COVID-19 era cases, estimated with high probability individual parts of the joint dissent in the Obamacare Case (2012), and discerned the likely authors of the landmark cases of Bush v. Gore (2000). Applications range from legal research to decoding SCOTUS internal dynamics. Compared to prior methods, our study demonstrates a substantially higher accuracy rate of 91 per cent over a much longer period of time, offering timely insights into the nuances of SCOTUS decision-making. To facilitate further research, we provide a public web server at https://raminass.github.io/SCOTUS_AI/.
Using a novel dataset of about 640,000 circuit court decisions from 1985 to 2020, I show that panel political composition is associated with case outcomes in a vastly broader array of federal circuit court cases—representing together about 90% of all cases—than prior work has appreciated. In cases between parties that could be perceived to have unequal power, Democratic-nominated judges tend to have a “Pro-Weak” tendency to side with the seemingly weaker party. In cases without perceived power inequality, Democratic-nominated judges tend to have a “Less-Deference” tendency to be more willing to reverse lower court decision.
The American electorate is transforming-undergoing its most sweeping changes in half a century. These shifts include the disappearance of income as a partisan cleavage, the emergence of education as a new partisan axis, a decline in racially polarized voting, and a more neutral political geography. This Article is the first to explore the implications of the new electorate for election policy and law. As to policy, the parties' longstanding positions on numerous electoral issues have become obsolete. As to law, an array of electoral claims and defenses now operate differently than in the past.
This article reports on the systematic use of a large language model by a court in China to generate judicial opinions-arguably the first instance of this in the world. Based on this case study, we outline the interaction pattern between judges and generative artificial intelligence (AI) in real-world scenarios, namely: 1) judges make initial decisions; 2) the large language model generates reasoning based on the judges' decisions; and 3) judges revise the reasoning generated by AI to make the final judgment. We contend that this pattern is typical and will remain stable irrespective of advances in AI technologies, given that judicial accountability ultimately rests with judges rather than machines. Drawing on extensive research in behavioral sciences, we propose that this interaction process between judges and AI may amplify errors and biases in judicial decision-making by reinforcing judges' prior beliefs. An experiment with real judges provides mixed evidence.
This article develops a comprehensive account of the methods of consent solicitation broadly construed. We offer four principal contributions. First, we identify the features of a solicitation that can produce coercive intercreditor dynamics. Second, we document the possibility of coercive methods under standard bond and loan contracts. Third, we show that economic considerations can justify coercion. Fourth, we conclude that the most coercive prevailing techniques cannot be so easily justified and propose an approach to construing debt contracts that would restrain what are likely the most value-destructive solicitation methods without condemning longstanding and plausibly value-enhancing techniques.
The USA, alongside many other nations, presently faces a vital policy choice: should it adopt the global minimum tax proposed by the Organization for Economic Cooperation and Development, purportedly to ensure basic levels of corporate taxation of large multinationals? I set out a framework for analyzing and predicting global minimum tax adoption by self-interested, national-income-maximizing governments. Contrary to both popular and prior scholarly claims, the global minimum tax is incentive incompatible: countries from which multinationals originate will likely suffer deep losses; the tax's purported enforcement tool, even read in an aggressive, controversial fashion, is ineffective. The global minimum tax may unravel despite initial adoption. (JEL codes: F23, F55, H25, H73, H87, K34).
