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Symposium - 2020 - Lawyering in the Age of Climate Change

Forum Versus Substance

Should Climate Damages Cases Be Heard in State or Federal Court?
by  Vic Sher  

Since 2017, public agencies including cities, counties, and one state have filed thirteen lawsuits against fossil fuel companies seeking climate change-related damages. Plaintiffs filed 12 of the 13 cases in state courts; all 13 assert solely state law claims. But, defendants removed the cases to federal court. This Essay examines the relationship between the questions of federal court removal jurisdiction and the substance of plaintiffs’ claims.

Volume 72 (2019-2020)

Storm Over Business District

Symposium - 2020 - Lawyering in the Age of Climate Change

New Mandates for Action

Corporate Governance Meets Climate Change
by  Ali A. Zaidi  

In recent years, entities involved across the broad spectrum of private capital formation have begun to analyze the financial implications of climate change. This Essay seeks, briefly, to identify the purpose, people, and processes activated in the engagement of climate change by corporate governance. It notes with optimism that the decision points for corporate governance in this context are heterogenous: Opportunities exist to go on offense, not just defense.

Volume 72 (2019-2020)

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Symposium - 2020 - Lawyering in the Age of Climate Change

The Role of Lawyers in Decarbonizing Society

by  Michael B. Gerrard  

A number of groups of engineers and scientists have laid out specific pathways for meeting targets for reducing greenhouse gas emissions. For governments and corporations to deviate from their business as usual and instead follow these pathways, voluntary measures will only take us so far; legal requirements, incentives, and other inducements are needed. This Essay concerns one current project to turn GHG reduction goals into actual laws that could achieve these goals, and the critical role that volunteer lawyers will play in this effort.

Volume 72 (2019-2020)

Mind Your Oil Business

Symposium - 2020 - Lawyering in the Age of Climate Change

The Public Use Clause in an Age of U.S. Natural Gas Exports

by  Alexandra B. Klass  

This Essay explores how courts are grappling anew with the role of the Public Use Clause in an age of energy exports. Recent case law involving FERC’s public use determinations and the agency’s practice of delaying judicial review of its decisions through “tolling orders” shows increasing discomfort in the federal courts with FERC’s treatment of these projects. Such discomfort could lead to real changes in the law governing public use for natural gas pipelines and may create a new jurisprudence surrounding eminent domain.

Volume 72 (2019-2020)

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Book Review Symposium - Theaters of Pardoning

Introduction

by  Amalia D. Kessler  

Bernadette Meyler’s Theaters of Pardoning is a tour de force of legal, literary, and historical erudition, which packs a punch for key questions of law and justice today. In this Book Review Symposium, four prominent, interdisciplinary scholars, including Meyler herself, each reflect on particular aspects of the book’s many important contributions.

Volume 72 (2019-2020)

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Book Review Symposium - Theaters of Pardoning

Acts of Oblivion

by  Kenji Yoshino  

Bernadette Meyler’s Theaters of Pardoning offers a profound and provocative meditation on the relationship between forgiveness and the state. In this comment, I follow her methodological and substantive lead by taking literary and legal approaches to a curious form of pardoning she discusses in her work—the “Act of Oblivion.” The Act of Oblivion operated as a super-pardon: It was “a form of general amnesty erasing the record of the underlying events rather than simply remitting punishment.” Pardon is to oblivion as forgiving is to forgetting.

Volume 72 (2019-2020)

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Book Review Symposium - Theaters of Pardoning

The Ends of Pardoning

by  Peter Brooks  

Theaters of Pardoning is itself an exemplary act of law and literature scholarship, in which each of these fields illuminates the other. Meyler’s book transcends the impasse of law and literature scholarship in that it privileges neither of its fields but instead creates a dialogue between them. That takes tact and balance, as well as deep understanding of the two fields set in juxtaposition.

Volume 72 (2019-2020)

Measure for Measure

Book Review Symposium - Theaters of Pardoning

The Drama of the Pardon, the Aesthetics of Governing and Judging

by  Robert Weisberg  

Theaters of Pardoning is the one of the rare works that shows how legal authority and literary form interact catalytically in the conduct of government and adjudication. The heart of the book’s contribution to law-literature scholarship, however, lies in its demonstration of how the aesthetic development of the genre of tragicomedy both mirrored and influenced adjustments in the strategy of royal pardoning employed to buttress sovereignty.

Volume 72 (2019-2020)

Trump

Book Review Symposium - Theaters of Pardoning

Trump’s Theater of Pardoning

by  Bernadette Meyler  

Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion.

Volume 72 (2019-2020)

Immigration to Europe

Response

The Struggle Against Empire Continues

Reflections on Migration as Decolonization
by  Chantal Thomas  

Migration as Decolonization telegraphs the essence of a postcolonial approach to the assertion of sovereign territorial exclusion. Tendayi Achiume’s concept of “de-imperial migration” clarifies and enhances a set of important critiques and should justly impact not just legal scholarship but also broader public discourse. This Response brings out two of the concepts in Migration as Decolonization and relates them to Professor Thomas' earlier discussions of “interconnectedness” between migration-sending and migration-receiving territories.

Volume 72 (2019-2020)

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2019 Student Essay Competition Winner

Influencing the Future

Compensating Children in the Age of Social-Media Influencer Marketing
by  Erin E. O'Neill  

In the age of smartphones, parents frequently take photos and videos of their children—even mundane moments are easy to share with friends and family. But what happens when these photos and videos are made public for any social-media user to see? This Essay proposes ways in which states can regulate online child-centric content by mom-influencers.

Volume 72 (2019-2020)

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2019 Student Essay Competition Winner

Game Changer

Why and How Congress Should Preempt State Student-Athlete Compensation Regimes
by  Justin W. Aimonetti & Christian Talley  

In September 2019, California enacted the Fair Pay to Play Act, a groundbreaking piece of legislation that allows college athletes to profit off their name, image, and likeness. This Essay contends that congressional legislation should expressly preempt competing state regulations, thus restoring national uniformity in college sports. An express preemption provision would both avoid judicial uncertainty about the law’s preemptive scope and ensure a level playing field.

Volume 72 (2019-2020)

We the People

Response

Madison’s Waiver

Can Constitutional Liquidation Be Liquidated?
by  David S. Schwartz  

Professor William Baude’s recent article Constitutional Liquidation outlines such a theory, by which indeterminate constitutional meaning can be “liquidated”—clarified and settled—through a “course of deliberate practice” by non-judicial public officials. Baude’s article makes a good start but leaves certain critical questions unaddressed. If Baude develops his theory further, he will have to analyze numerous examples of non-judicial precedent to define the contours and limits of liquidation.

Volume 72 (2019-2020)

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Essay

What Justice Thomas Gets Right About Batson

by  Thomas Ward Frampton  

In Flowers v. Mississippi, the Supreme Court vacated the capital conviction of Curtis Flowers; prosecutor Doug Evans was “motivated in substantial part by discriminatory intent” when he used a peremptory strike to exclude a black potential juror, the Court held, violating a prohibition against such conduct first announced in Batson v. Kentucky. Justice Thomas penned a lengthy dissent that has been met with disdain in the popular press. But Justice Thomas’s dissent also gets right many things about the Batson doctrine and race in the courtroom that the Court’s liberal wing has proven loath to confront.

Volume 72 (2019-2020)

The Amazon World Headquarters Campus Spheres USA

Essay

Short-Termism and Antitrust’s Innovation Paradox

by  Joshua P. Zoffer  

Antitrust law has long struggled to account for the role of innovation in economic production. Dynamic factors like capital stock, investment spending, and productivity growth do not lend themselves to neat doctrinal rules or clear regulatory mandates. And the antitrust literature has long treated “innovation” as either the domain of intellectual property law or a black-box variable, rather than the product of specific intracompany organizational and investment decisions.

Volume 71 (2018-2019)

File Folders of Taxes

Essay

Hyperlocal Responses to the SALT Deduction Limitation

by  Manoj Viswanathan  

The Tax Cuts and Jobs Act places a $10,000 limit on the federal deduction for state and local taxes (SALT). Much has been said about state-level responses to this cap, but there has been little analysis of local-level effects or how local governments could similarly respond. This Essay addresses that gap by (1) statistically modeling the number of taxpayers affected by the SALT deduction cap at a ZIP-code level, and (2) proposing locality-based strategies relevant to taxpayers throughout the U.S., not just those living in highly affected states.

Volume 71 (2018-2019)

An empty fenced prison yard with prison behind

Symposium - 2019 - Immigration

Privatized Detention & Immigration Federalism

by  David S. Rubenstein & Pratheepan Gulasekaram  

The vast majority of detained immigrants are held in facilities operated by private corporations. Over the past decade, academics and dedicated advocates have shed critical light on the structural causes and effects of privatized immigration detention, offering a range of policy prescriptions along the way. Until now, however, federalism has been a virtual blind spot in that reformist agenda. Intervening, this Essay draws federalism into the spotlight.

Volume 71 (2018-2019)

Immigrant visa

Symposium - 2019 - Immigration

Crediting Migrants

by  Shayak Sarkar  

Credit facilitates migration, and it may also provide a theoretical framework to understand it. This Essay examines the role of credit and financing in migration by focusing on changes to the “public charge” ground of inadmissibility—American immigration law’s nearly 150-year-old test for prohibiting migration by those financially dependent on governmental assistance.

Volume 71 (2018-2019)

Symposium - 2019 - Immigration

Detention as Deterrence

by  Emily Ryo  

Does immigration detention deter unauthorized migration? The federal government has argued that “one particular individual may be civilly detained for the sake of sending a message” to others “who may be considering immigration.” Emerging empirical research, however, provides little to no evidence that detention has had the type and level of deterrent effect desired by the federal government. Why might this be so? This Essay addresses this question by examining three key “deterrence hurdles” that present challenges to detention as deterrence.

Volume 71 (2018-2019)

White Lives Matter Rally, Austin, Tx, Nov. 19, 2016

Symposium - 2019 - Immigration

White Nationalism as Immigration Policy

by  Jayashri Srikantiah & Shirin Sinnar*  

This Essay argues that legal challenges to Trump’s restrictive immigration policies should call out white nationalism as the underlying harm, both through raising equal protection claims and in presenting the overall theory of the case. Asserting these claims can frame public and political understanding of the issues at stake, support social movements challenging racialized immigration enforcement, and offer an alternative vision for immigration law that rejects both racial criteria and exceptional judicial deference.

Volume 71 (2018-2019)