Remarks to the Institute for Law and Economic Policy
The test for allowing a class action under former Equity Rule 38 was modestly stated to be satisfied when the question before the court was "one of common or general…
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Designing Effective Border Carbon Adjustment Mechanisms: Aligning the Global Trade and Climate Change Regimes
Policy work in both the United States and the European Union (“EU”) is underway on how best to structure border carbon adjustment (“BCA”) mechanisms to protect the competitiveness of domestic industries while these enterprises make investments in reducing their greenhouse gas (“GHG”) emissions. Often, these investments are costly for domestic industries, and may therefore result in lost sales in a global marketplace where companies in other jurisdictions face no parallel obligation to address c…
Is Silence Golden?
Absolute constitutional rights are rare—even the venerable rights of free speech and freedom of religion are not absolute. In criminal prosecutions, the Sixth Amendment’s right to counsel has been described as the most important of all rights because it affects a defendant’s ability to assert his or her other rights. But even the right to counsel is not unlimited.
Yet one right is absolute. A criminal defendant has an absolute right not to testify in his own criminal trial. The text of the S…
Crimmigration and the Legitimacy Of Immigration Law
Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been central in discussions over political compromise on immigration reform. Yet crimmigration law’s singular approach to interior immigration and criminal law enforcement threatens to undermine public faith in the legitimacy of immigration law.
This Article explores the significance of crimmigration for the procedural legitimacy of immigration law. Seminal scholars of psychol…
The First Amendment and the Second Sex
Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Ame…
One Small Step and a Giant Leap: Comparing Washington, D.C.’s Rule 5.4 with Arizona’s Rule 5.4 Abolition
Model Rule 5.4—which prohibits nonlawyer ownership of law firms—has existed for almost 100 years in one iteration or another. Throughout that time, the Rule has been steeped in controversy. Some consider the Rule a necessary fail-safe, protecting the legal profession from complete ethical collapse. Others consider the Rule to be nothing but a hindrance to legal innovation, artificially inflating the cost of legal services. This Note compares Washington, D.C.’s modified Rule 5.4, allowing nonlaw…
Delivering Fairness: The Need for an Antitrust Standard that Considers Labor Market Consolidation in the Gig Economy
The rapid spread of the COVID-19 pandemic left consumers to figure out how to bring the comforts of the world into their homes. Few industries benefited from this trend like the food delivery industry. Revenue more than doubled for the major food delivery companies during the pandemic, and these traditionally unprofitable companies posted profitable quarters in 2020 and 2021. But while the companies continue to grow, restaurants and delivery drivers generally have not profited in tandem. Food d…
Safety as Privacy
New technologies, such as internet-connected home devices we have come to call the Internet of Things (IoT), connected cars, sensors, drones, internet-connected medical devices, and workplace monitoring of every sort, create privacy gaps that can cause danger to people. In prior work,1 two of us sought to emphasize the deep connection between privacy and safety to lay a foundation for arguing that U.S. administrative agencies with a safety mission can and should make privacy protection one of t…
