All posts tagged: Faculty Scholarship


Turning the Kaleidoscope: Toward a Theory of Interpreting Precedents

A full generation of legal scholarship has analyzed methods of interpreting statutory and constitutional provisions. Different works have emphasized text, original intent, original reception, and dynamic “living” meaning as academics have argued over which methodological systems describe current practice, and which systems are normatively best. Comparable methodological debates have not occurred with respect to judicial decisions. This Article examines precedents as a third category of legal authorities that — much like statutes and constitutions — sometimes present vague answers to important legal questions. This Article’s system of precedential interpretation will challenge unexamined intuitions about “reading cases,” with collateral implications for statutory and constitutional interpretation as well. I consider four categories of historical materials to generate different sorts of precedential meaning: (i) an opinion’s text, indicating a decision’s declared meaning; (ii) adjudicative context, reflecting a precedent’s implied meaning; (iii) reception by contemporary analysts, which depict understood meaning; and (iv) subsequent doctrinal applications, which identify developmental meaning. These categories offer analogies to forms of textualism, originalism, and dynamism that are well known in other legal contexts. Different …

People laughing

Toward a Jurisprudence of Social Values

Legal theory wrestles perennially with a variety of seemingly intractable problems. I include among them questions about what we are doing when we interpret legal texts, the distinctions between hard and easy cases and between rules and standards, and the meaning of the rule of law. I argue in this essay that we can, in fact, make substantial progress toward clarifying these problems and making them much more intelligible by keeping in mind the role that social values play in law. And that role is fundamental: social values constitute the law. Part I sketches a jurisprudential framework for thinking about the relationship of social values to law. Part II suggests the utility of that framework by showing how it casts new and revealing light on the important jurisprudential puzzles noted above – puzzles about interpretation, hard and easy cases, rules and standards, and the rule of law. Download the Paper from the Washington University Jurisprudence Review  

Big Data

Public Health Law Monitoring and Evaluation in a Big Data Future

Law is important to public health. It provides government health agencies with their jurisdiction and regulatory authority. Laws and regulations are routinely used in the name of health to regulate behavior and foster safer environments. More fundamentally, law’s influence in shaping everyday life and the socioeconomic and physical environments in which it unfolds has a powerful impact on both the level and distribution of health. Despite law’s importance, and despite the strong orientation toward scientific evaluation in public health, the study of the impact of laws and legal practices on health (“public health law research”) has been uneven. While research of the highest quality has been sustained in a few areas like auto safety and tobacco control, it has been infrequent or truncated in others, like gun control and HIV/AIDS. The research that has been supported is almost entirely aimed at evaluating deliberate legal interventions. Epidemiological research on unintended health effects of non-health laws has been almost entirely neglected. Overall, the national investment in rigorously separating the laws that help from the laws that hurt has …

Leaves in the Sun

Next Generation Compliance and Enforcement: Back To The Future

This paper considers a range of present day and forward looking activities associated with ‘next generation’ environmental compliance and enforcement. It does so, in part, by reflecting and looking ‘back to the future’ to see what lessons have already been learned and what information and holdings already exist that might assist environmental compliance and enforcement professionals into the future. The paper understandably and perhaps unsurprisingly considers aspects that fall under broad groupings of: tools and technology; behavioural and social sciences; and systems and approaches. However, central to the paper is the important but sometimes underused role of environmental enforcement networks and the fact that often the human element of compliance and enforcement practitioners themselves can be overlooked or not fully appreciated. The authors, between them, have in excess of 77 years of experience in undertaking, leading and supporting environmental compliance and enforcement efforts. Their activities, while based in three continents (Europe, North America, and Australasia), have informed global and regional environmental enforcement networks in most parts of the world. The paper does not attempt to …

Financial Newspaper

Infinite Financial Intermediation

Intermediation is a fundamental fact of finance. Intermediaries like commercial banks, investment banks, stockbrokers, mutual funds, and stock exchanges form the fabric of modern finance. Yet despite all these financial links, entrepreneurs and innovators continue to endeavor towards the possibilities of fundamentally disrupting and disintermediating these existential financial ties, breaking apart from the financial main, and building new financial islands. This Article offers a studied commentary of those financial links and those disengaging endeavors, the ties that thread the fabric of modern finance and the efforts to tear those threads asunder. It presents an examination of the functional evolution of financial intermediation, explains the difficulties of true financial disintermediation by revealing the underappreciated links that remain when traditional links are decoupled, and highlights potential implications and recommendations arising from such a revelation. Building upon a rich literature that spans law, economic, finance, and sociology, it seeks to explain the strong adhesiveness of financial intermediation and explore the looming challenges presented by future financial intermediation. Collectively, this Article provides a different perspective for thinking about financial …

Students in the classroom

Case Selection and Secondary Trauma

I don’t relish my student’s traumatic experiences. I am happy, however, that they are happening with me there to support them. Perhaps I should be a little less overtly honest about it with my students. As they came in over the last few weeks to relay some of their traumatic experiences to me, maybe I should not have moved so quickly to tell my students how much I thought they were learning from it and instead commiserated more on how bad it must be to experience clients’ trauma for the first time. One student, on meeting his SSI client for the first time, had her tell him it wasn’t worth living once she was denied benefits and that she had considered killing herself over the case. Another student went before an ALJ quite convinced that her severely mentally ill client should win only to have the ALJ badger her and the client about drug use that seemed truly irrelevant. Like many clinicians, I have sent students to see dying clients, had clients insult and run …


Time to Reboot? DMCA 2.0

Perhaps the most vexing question in copyright law today is whether Internet Service Providers (ISPs) should be liable for the infringing acts of their subscribers. While the 1998 Digital Millennium Copyright Act (DMCA) provides a number of safe harbors that effectively immunize ISPs from most liability for subscribers’ infringing conduct, a larger questions looms: Should ISPs nevertheless be responsible for preventing infringement occurring on their sites? Since the enactment of the DMCA, copyright infringement — through BitTorrent peer-to-peer systems, video streaming, direct download cyberlockers, and other file sharing networks — has increased at a phenomenal rate. Worldwide, hundreds of millions of Internet users seek out infringing content. The current DMCA scheme places the onus on copyright holders to root out infringement and then seek the help of ISPs through the DMCA’s notice and takedown provision. This system proved adequate for a while, but some question whether in light of the massive infringement occurring online, whether ISPs should take on a greater role in curbing infringement. As might be expected, there is no consensus. Copyright holders …

People meeting

Rethinking Contractual Choice of Law: An Analysis of Relation Syndrome

The doctrine of contractual choice of law provides the parties with the power to select the law that governs their business or other private activities crossing jurisdictional boundaries. An issue facing the choice is whether the law chosen by the parties must bear certain relation between the enacting state or country and the parties, transactions or disputes. In the United States, such relation is required in order for the chosen law to become enforceable, but elsewhere in the world, the relation is not essential to the choice of law by the parties. In 2001, as part of their initiative to have a broader reform, the American Law Institute and the National Conference of Commissioner on Uniform State Laws attempted to replace U.C.C. §1-105 with §1-301. The major change was the deletion of the “reasonable relation” requirement for contractual choice of law. The replacement was considered as a necessary step in the reform, and it was also deemed as an effort to align the U.C.C. with the established international commercial practices. Unfortunately, however, the attempt failed. …

Business people overlooking city

A Long View of Shareholder Power: From the Antebellum Corporation to the Twenty-first Century

For most of the twentieth century, the conventional wisdom held— probably correctly—that shareholders in America’s large, public corporations were passive and powerless and that managers wielded the real power. Beginning in the 1980s, however, shareholders in the form of institutional investors started to push for a greater say in corporate decision-making. In the twenty-first century, hedge funds have upped the ante, fighting for major changes in corporations whose shares they own. Once-imperial CEOs have now become embattled as they fight, but often lose, against activist shareholders demanding policy changes, new dividends, board representation, and even the sale or break-up of corporations. In short, things have changed. This Article situates the present-day rise of shareholder power by taking a long view of the previous two centuries, moving beyond traditional accounts to reach all the way back to the beginnings of the American business corporation in the early nineteenth century, then following the story of shareholder power up to the present day. Its long view reveals the complicated and shifting nature of shareholder power, documenting how periods …