Sharing Scholarship - January 2021
January 2021
New Scholarship in this Issue
Articles: Adler | Benjamin | Blocher | Bradley | Eldar | Garrett | Grant | Helfer | Krawiec | Levi | Levy | Lovelace | Nowlin | Rai | Roady | Seymour | Schwarcz
Articles
Matthew Adler
Fair Innings? the Utilitarian and Prioritarian Value of Risk Reduction Over a Whole Lifetime
75 Journal of Health Economics, Article 102412, 1-18 (2021)
The social value of risk reduction (SVRR) is the marginal social value of reducing an individual’s fatality risk, as measured by some social welfare function (SWF). This Article investigates SVRR, using a lifetime utility model in which individuals are differentiated by age, lifetime income profile, and lifetime risk profile. We consider both the utilitarian SWF and a “prioritarian” SWF, which applies a strictly increasing and strictly concave transformation to individual utility. …
Stuart Minor Benjamin
The First Amendment and Algorithms
in The Cambridge Handbook of the Law of Algorithms 606-631 (Woodrow Barfield, ed., 2021)
Joseph Blocher
True Threats, Self-Defense, and the Second Amendment
48 The Journal of Law, Medicine & Ethics S2, 112-118 (2020) (with Bardia Vaseghi)
Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities that can be legally proscribed? This article finds guidance in the First Amendment doctrine of true threats, which permits punishment of “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual.” The Second Amendment, like the First, should not be read to protect those who threaten unlawful violence. ...
Why Regulate Guns?
48 The Journal of Law, Medicine & Ethics S2, 11-16 (2020) (with Reva Siegel)
Curtis A. Bradley
Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity
115 American Journal of International Law 1-19 (2021)
For more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between an “effect-of-judgment” approach that would confer immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state, and a broader “nature-of-act” approach that would confer immunity whenever the plaintiff's case is challenging conduct carried out on behalf of the state. The Comment argues in favor of the nature-of-act approach and explains why analogies in this context to domestic civil rights litigation are misplaced.
Ofer Eldar
Crisis Poison Pills
The Review of Corporate Finance Studies, Advance Article 1-60 (8 December 2020) (with Michael D. Wittry)
We show that a large number of firms adopt poison pills during periods of market turmoil. Specifically, during the coronavirus pandemic, many firms adopted poison pills following declines in valuations, and stock prices increased upon the announcement of firms’ poison pill adoption. Stock price increases are driven by (1) firms in which activist shareholders acquire ownership stakes and (2) firms in industries that had high exposure to the crisis. Likewise, we find a positive reaction to pills with provisions directed at stalling activists’ interventions. Our results suggest that crisis pills that target potentially disruptive ownership changes may benefit current shareholders.
Brandon L. Garrett
Misplaced Constitutional Rights
100 Boston University Law Review 2085-2131 (2020)
Constitutional rulings risk an unnoticed type of mission creep: misplacement through adoption in settings that they were not designed to regulate. This Article describes how in a set of important areas—and sometimes despite the Supreme Court’s explicit cautionary language—constitutional rules have taken hold outside of the settings that they were primarily designed to regulate, providing unanticipated additions to rules and practice. …
Crystal Grant
COVID-19's Impact on Students with Disabilities in Under-Resourced School Districts
48 Fordham Urban Law Journal 127-141 (2021)
This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. ...
Special Education by Zip Code: Creating Equitable Child Find Policies
52 Loyola University Chicago Law Journal 127-177 (2020)
It is estimated that more than 1.3 million youth in the United States have a disability. One in four American adults have a disability that impacts major life activities. With disability rates this high, our nation must prioritize efforts to ensure that all children with disabilities and in need of special education are identified and receive the support they need in school. … This Article argues that the child find mandate, as implemented, is ineffective for many school districts. In addition to strengthening guidance directing schools on how to implement the child find mandate, I propose crafting regional solutions that will provide greater access to training, resources, and accountability to aid school districts in more equitable access to special education.
Laurence R. Helfer
Rethinking Derogations from Human Rights Treaties
115 American Journal of International Law 20-40 (2021)
Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of human rights treaty derogations. It analyzes the system's problems, identifies recent developments that have exacerbated these problems, and proposes a range of reforms in five areas—embeddedness, engagement, information, timing, and scope.
Kimberly D. Krawiec
Kidney Donation and the Consent of the Poor
66 Loyola Law Review 23-32 (2020) (with Philip J. Cook)
David F. Levi
From Judge to Dean and Back Again: Reflections on Transitions
59 The Judges' Journal 4-7 (2020)
Marin K. Levy
The Promise of Senior Judges
115 Northwestern Law Review 1227-1260 (2021)
Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. …
This Essay begins the task of identifying and proposing stronger incentives for federal appellate judges to take senior status. …
H. Timothy Lovelace Jr.
“To Restore the Soul of America”: How Domestic Anti-Racism Might Fuel Global Anti-Racism
115 AJIL Unbound 63-68 (2021)
Michelle B. Nowlin & Stephen E. Roady
The County of Maui Decision Confirms the Meaning of the Clean Water Act - and the English Language
52 Trends 2-4 (2020) (with Shannon M. Arata)
Arti K. Rai
Clearing Opacity Through Machine Learning
106 Iowa Law Review 775-812 (2021) (with W. Nicholson Price II)
Stephen E. Roady
Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area
in Global Challenges and the Law of the Sea 333-349 (Marta Chantal Ribeiro, Fernando Loureiro Bastos & Tore Henriksen, eds., 2020) (with Hannah Lily)
The International Seabed Authority has a challenging dual role: to develop the mineral resources of the seabed beyond national jurisdiction, whilst also protecting and preserving the marine environment from the effects of seabed mining. Setting rules, regulations and procedures for environmental management will be a key means of discharging that responsibility. This chapter identifies where there appear to be gaps within the current system, with particular attention to environmental impact assessment procedures. The authors consider the new exploitation regulations currently under negotiation, and identify opportunities to bolster such rules better to enable the International Seabed Authority to meet its environmental protection mandate.
Jonathan M. Seymour & Steven L. Schwarcz
Corporate Restructuring Under Relative and Absolute Priority Default Rules: A Comparative Assessment
2021 University of Illinois Law Review 1-36 (2021)
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