Legal Studies Research Paper Series

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Reader Privacy in Digital Library Collaborations: Signs of Commitment, Opportunities for Improvement

Anne Klinefelter
Libraries collaborate to digitize collections large and small in order to provide information with fewer geographical, temporal, or socio-economic barriers. These collaborations promise economy of scale and breadth of impact, both for access to content and for preservation of decaying print source material. Some suggest this increased access to information through the digital environment comes at the expense of reader privacy, a value that United States librarians have advanced for nearly eighty years. Multiplying risks to digital reader privacy are said to weaken librarians’ commitment to privacy of library use and to overwhelm libraries’ ability to ensure confidential access to information. This article reviews some recent national and international organization statements on library privacy and finds continuing commitment to library privacy but varied approaches to balancing privacy with other goals and challenges in the digital environment. The article also evaluates privacy protections arising from libraries’ digital collaboration work with Google Books and the related HathiTrust project, and finds a number of vulnerabilities to confidential library use of these resources. These reviews confirm that reader privacy is increasingly at risk even as librarians’ confirm their commitment to protecting reader privacy through organizational statements. The article concludes that libraries can use their collaborative traditions to develop better approaches to protecting privacy as they develop digital collections. Even if libraries have limited success negotiating for or creating digital spaces for perfect digital reader privacy, much can be gained by making privacy an important feature of digital library design. Incremental but meaningful improvements can come from user authentication systems with privacy features, wider adoption of encryption, and innovations in website analytics tools. Reader privacy pressures and compromises are not new to libraries, and incremental solutions in the digital environment are worthy efforts that honor the tradition of libraries’ commitment to reader privacy.

-June 5, 2017

Consumer Investment in University Brands

Deborah R. Gerhardt
Universities, like other trademark owners, often claim that their brands are supported by meaningful core values. With less expensive products, consumers may test the quality of goods or services without sacrificing high opportunity costs. Thanks to this common purchasing game of trial and error, trademarks are thought by economic theorists to incentivize investment in quality. This incentive mechanism may explain much about the consumer-producer relationship for products like diapers that are bought repeatedly if the consumer has a positive experience with the product’s style, price point, design and ability to prevent leaking. For more expensive, one-time purchases, like a college education, consumers do not have the same opportunity to experiment. Because schools sell themselves with seemingly interchangeable values, consumers must search for new ways to discern authenticity and quality before the point of purchase. This article proposes that one window into a brand’s authenticity is the extent to which its consumer community demands adherence to specific core values in moments of crisis. A pair of case studies examines how two communities responded when their law schools deans were accused of sexual harassment. The demands of the consumer communities compelled very different results. These stories demonstrate the pivotal role a consumer community may play in identifying an educational brand's core values and compelling institutional commitment to them.

-June 5, 2017

Courts, Sovereign Immunity, and Credible Commitment in Sovereign Debt Markets

Mark C. Weidemaier
This essay revisits the role of legal enforcement in sovereign debt markets. The conventional view, which has long held sway in the economic literature, is that the law of sovereign immunity denies creditors effective legal remedies when governments do not repay their debts. To many observers, weak legal enforcement is problematic, for effective legal remedies would facilitate credible repayment commitments and thereby increase access to credit. Though substantially correct, this perspective is also flawed. The assumption that creditors lack effective legal remedies implicitly treats sovereign immunity law as a set of mandatory rules. In fact, sovereign lenders can and do bargain for greater enforcement rights. When courts enforce these bargains — as they seem increasingly willing to do — legal remedies gain potency. Yet potent remedies need not improve the functioning of debt markets. Courts can create effective remedies against sovereign debtors only by imposing significant costs on third parties. Many loan debt contracts are drafted so as to maximize these externalities. The important question — given short shrift thus far — is whether the credibility-enhancing virtues of legal enforcement justify the costs.

-June 5, 2017

Presiding Over Municipal Bankruptcies: Then, Now, and Puerto Rico

Melissa B. Jacoby
Federal district judges have not been directly responsible for municipal bankruptcy cases since the 1970s. Between then and now, federal bankruptcy judges have accumulated hard-won lessons about how to preside over cases involving governments. Indeed, the merit-selected bankruptcy bench has been groomed to handle restructuring cases of all kinds and of ever-growing size and complexity. Some proposals for the use of bankruptcy by systemically important financial institutions anticipate the use of bankruptcy judges. In 2016, Congress made a jarring break from this trajectory by requiring that a district judge preside over what is likely to be the biggest government bankruptcy case in American history: the Commonwealth of Puerto Rico. Title III of PROMESA, the law that would apply to a Puerto Rico debt restructuring case, incorporates and builds substantially on the existing U.S. bankruptcy system, but omits a central institutional actor - namely, the experienced judge. This article reviews the judicial selection requirement in PROMESA in a historical context, looking at municipal bankruptcy's judicial selection rules from its inception in the 1930s. Although the Ford Administration, speaking through then-Assistant-Attorney General Antonin Scalia, perceived advantages of district judges presiding over major city bankruptcies, my research unearthed no legislative discussion suggesting that Article III judges are constitutionally required for government bankruptcies, relative to other kinds of cases. One can only hope that the benefits of PROMESA's departure from the arc of bankruptcy court history will outweigh its considerable costs.

-June 5, 2017

The Jurisprudence of Slavery, Freedom, and Union at Washington College, 1831-1861

Alfred L. Brophy
In the thirty years leading into Civil War faculty and students at Washington College and the Virginia Military Institute discussed ideas about adherence to Union, the legal justification of slavery, slaves’ claims to freedom, and jurisprudence. Their discussion of jurisprudence included the need for adherence to law, and the roles of morality, sentiment, and utility in law. This article draws upon public addresses, like graduation speeches, at Washington College and VMI, to recover the sophisticated legal ideas in circulation in Lexington. Washington College was a place of Whig values of Union, adherence to law, and concern for utility. Speakers supported common Whig ideas, including the need for republican government to check excesses of democracy and a focus on the ways that a well-ordered society and respect for property and Christianity led to moral and economic progress. It also moved from a place where faculty held Enlightenment ideas about freedom – even if circumscribed by economic reality – to a place where slavery was embraced, partly because it was part of the Constitution. By contrast, at the Virginia Military Institute, pro-slavery and pro-secession ideas were more prevalent. The constitutional visions at moderate Washington College and pro-secession institutions at more radical places, like the University of Virginia, William and Mary, and the College of Charleston, reflected the wide range of Southern ideas about Union, slavery, utility, sentiment, Republicanism, and constitutionalism. Those ideas framed the Southern response to political changes, as Southerners discussed the mandates of jurisprudence and the Constitution in the years leading into War.

-June 5, 2017

Clustered Bias

Kate Sablosky Elengold
Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced intersectional discrimination based on more than one personal identity trait. Nearly thirty years after intersectionality theory was first introduced to legal scholarship, however, its insights have yet to be effectively integrated into antidiscrimination advocacy and doctrine. This paper borrows the contributions of intersectionality theory and explores its critiques to develop a novel “cluster framework” for bridging the divide between the theory and civil rights jurisprudence. Using race-sex discrimination as a lens, the proposed framework resituates intersectional discrimination wholly within a traditional protected class, illuminating similarities and differences in discrimination across groups and subgroups. The paper concludes with three concrete proposals to implement the cluster framework such that the antidiscrimination doctrine will better recognize and remedy intersectional discrimination.

-June 16, 2017

Trump and a Populist Tax Agenda?

Jay A. Soled, James Alm and Kathleen DeLaney Thomas
In this article, the authors argue that President Trump should urge Congress to institute a carryover tax basis rule for marketable securities applicable upon death.

-June 5, 2017

Civilizing Criminal Settlements

Russell M. Gold, Carissa Byrne Hessick and F. Andrew Hessick
Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously. Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements. This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements. It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties. In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation. Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations. The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.

-June 5, 2017

Free Will Fallibilism and the 'Two-Standpoints' Account of Freedom

Michael Louis Corrado
In this paper I propose a form of free will fallibilism. Unlike the free will realist who is fully persuaded that we have sufficient evidence of freedom to justify holding individuals morally responsible for what they do and imposing punishment, and unlike the free will skeptic who is fully persuaded that we do not have enough evidence to believe that we face a future of open alternatives, the free will fallibilist will believe that we have enough evidence to justify a belief in freedom for some purposes but not for others. The question that concerns me the most is whether punishment – this brutal institution that disposes of the lives of countless of our most vulnerable citizens – can be justified. I think it cannot, precisely because there is no evidence that human beings are free to choose between branching alternatives and so deserve to be treated like that. At least, if there is such justifying evidence it is more or less completely balanced by evidence that all events including human actions have causes. And, to tie the knot, I find compatibilism utterly unpersuasive. At the same time, I believe that I am a free agent; what I do is in large part up to me. I believe that the explanation of action cannot be reduced to causal explanation, and I believe that the logic of action requires a notion of branching time. I have two pictures of the universe, and I can live with that, with this qualification: acting on the basis of one picture requires considerably more justification than does acting upon the other. Between the problem that preoccupies me, punishment, and my day to day choices (whether to have another cup of coffee, for example), there is a wide gap. There are a lot of choices that, on the axis of justification, fall in between the two, many of them choices about how to treat those around us: whether to snub a friend who has insulted me, whether to castigate her, whether to reward a kind act with praise. Where to draw the line is a topic for another paper. The only principle that right now seems to me firm enough to act upon is this: the greater the likelihood of doing harm, the less likely the choice is to be justified.

-June 17, 2017

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