Elizabeth Anker, Professor of Law

“The Architecture of Critique” (2021), Yale Journal of Law and the Humanities, vol. 31, no. 2. Irony, contradiction, discontinuity, antagonism, ambiguity, paradox, antinomy, aporia, contingency, indeterminacy, ambivalence—in a list that continues. For decades, these have been the bywords of critical thought, whether within legal studies, left historiography, or humanistic inquiry at large. Even while those grammars capture the broad intellectual ethos that has animated critical and revisionist scholarship since the 1970s, they have acted as the central apparatus of critique: it has been doctrinal that unmasking properties like contradiction, paradox, discontinuity, and antagonism will work to disclose and to critique structures of power and domination. This essay first inquires into the sources of this methodological consensus, examining how it came to unite diverse and otherwise inharmonious schools of thought. Second, it raises questions about that architecture of critique. Erected on a highly specific account of power, such a focus on properties such as contradiction can furthermore reinforce the very biases, hierarchies, and structures of oppression that critical thought aims to dismantle. Such reasoning can also result in a neoformalism, notwithstanding the fact that critical legal thought itself stems from realist opposition to the formalist application of abstract legal rules.

Dan Awrey, Professor of Law

“Unbundling Banking, Money, and Payments”(January 31, 2021), Georgetown Law Journal, (forthcoming). For centuries, our systems of banking, money, and payments have been legally and institutionally intertwined. The fact that these three—theoretically distinct—systems have been bundled together so tightly and for so long reflects a combination of historical accident, powerful economic and political forces, path dependence, and technological capacity. Importantly, it also reflects the unique and often under-appreciated privileges and protections that the law bestows on conventional deposit-taking banks. These privileges and protections have entrenched banks as the dominant suppliers of both money and payments: erecting significant barriers to entry, undermining financial innovation and inclusion, spurring destabilizing regulatory arbitrage, and exacerbating the “too-big-to-fail” problem. Against this backdrop, the recent emergence of a variety of new financial technologies, platforms, and policy tools hold out the tantalizing prospect of breaking this centuries-old stranglehold over our basic financial infrastructure. The essential policy problem, at least as conventionally understood, is that creating a level legal playing field would pose a serious threat to both monetary and financial stability. This article demonstrates that this need not be the case and advances a blueprint for how we can safely unbundle banking, money, and payments, thereby enhancing competition, promoting greater financial innovation and inclusion, and ameliorating the too-big-to-fail problem.

Maggie Gardner, Associate Professor of Law

“District Court En Bancs” (April 22, 2021), Fordham Law Review (forthcoming). Despite the image of the solitary federal district judge, there is a long but quiet history of federal district courts deciding cases en banc. District court en bancs predate the development of en banc rehearings by the federal courts of appeals and have been used to address some of the most pressing issues before federal courts over the last one hundred years: Prohibition prosecutions, bankruptcies during the Depression, labor unrest in the 1940s, protracted desegregation cases, asbestos litigation, and the constitutionality of the U.S. Sentencing Guidelines, to name a few. This article gathers more than 140 examples of voluntary collective adjudication by district judges, supplemented by interviews with sitting judges who participated in more recent cases. While the article’s aim is primarily descriptive and doctrinal, it also defends the occasional and disciplined use of such proceedings as enabling deliberation about and increasing the legitimacy of high-stakes district court decisions. More broadly, the article celebrates the distinct voice of the district courts and their procedural innovations. The district courts handle the vast majority of the federal judiciary’s business and bear the brunt of new legal and societal challenges; their ingenuity is often the vanguard for procedural and administrative reform. Indeed, the story of district court en bancs is also the story of the federal courts’ constant evolution. The current settlement of the federal courts’ institutional design is the product of shifting pressures and compromises, and it would be foolish to assume that the status quo is either perfect now or will continue to function effectively despite changing conditions. In a moment of renewed attention to the federal judiciary, district court en bancs may helpfully challenge our assumptions about the structure of the federal courts and the power of district judges within them.

Elizabeth Brundige, Clinical Professor of Law

(with coauthors K. Albert, E. Armbruster, E. Denning, K. Kim, L. Lee, L. Ruff, K, Simon, and Y. Yang) “FOSTA in Legal Context” (July 30, 2020), Columbia Human Rights Law Review, vol. 53, no. 3. In the spring of 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which made changes to three federal statutory schemes: the Communications Decency Act, the Trafficking Victims Protection Act, and the Mann Act. Congressmembers claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such as Backpage.com had avoided liability for sex trafficking. More than two years after its passage, only one prosecution has been brought under the new criminal provision, and FOSTA’s 230 exemptions have received very limited use. These provisions have, however, had widespread effects on internet companies. In this article, the authors put FOSTA into its legal context, exploring how its provisions relate to existing federal antiprostitution and anti-trafficking laws. They highlight how the impact of FOSTA has been disconnected from the actual content of the legal changes, how statutory language creates broad areas of uncertainty, and how the law may be interpreted to reduce harm to sex-working peoples.

Odette Lienau, Professor of Law

“The Time Has Come for Disaggregated Sovereign Bankruptcy” (May 31, 2021), Emory Bankruptcy Developments Journal (June 28, 2021). With expanding global vaccinations and the potential end of the COVID-19 pandemic in sight, who among us has not succumbed to daydreams of post-crisis “normal” life? Still—and setting aside for now the certain obstacles on any road to public and economic health—we should not be too sanguine about the degree to which the eventual recovery will be even, including across countries. By now, the images of economic dislocation resulting from the pandemic, including empty tourist beaches, deserted town centers, and closed manufacturing plants, have become commonplace. In certain regions and countries, this dislocation and its after-effects may prove long lasting, putting the world at risk for a postpandemic sovereign debt crisis. In this essay, Lienau provides an overview of some of the key developments that have emerged in the sovereign debt space in the wake of the COVID-19 pandemic and argues that we should use the energy generated in this moment to move toward what might be called “disaggregated sovereign bankruptcy,” in part by establishing institutions that could more effectively and efficiently address future crises as they arise. She notes the country financial difficulties generated by the current situation and emphasizes the ways in which national responses may have long-term financial impacts that make states more vulnerable to debt distress, particularly in the developing world. Lienau also delineates how any restructuring efforts that might result from such distress would have to contend with longstanding problems in the global architecture relevant to sovereign debt. These difficulties have hardly disappeared and may even have become more complex in recent years.

Briana Beltran, Lecturer, Farmworker Legal Assistance Clinic Beth Lyon, Clinical Professor of Law (with coauthor Nan Schivone)

“Scorched Border Litigation,” Columbia Human Rights Law Review 53.1 (forthcoming) This article documents and critiques a phenomenon we term “scorched border” litigation, which is a strategy used by employer defendants in civil lawsuits brought by temporary foreign worker plaintiffs. When workers turn to the U.S. legal system to redress violations they experienced while laboring here, they typically litigate from rural communities in other countries. During litigation, employers use the fact that workers are no longer in the United States to gain an advantage. This drives up costs for the public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. The authors of this article drew on a range of sources to analyze these tactics, including a practitioner survey, case histories, and a review of court rulings. They found that federal litigation has already adapted to handle the complexities presented by these cases, such as modifying the manner and location of a plaintiff’s deposition. Such adaptations are not new to experienced plaintiffs’ counsel and are regularly permitted by courts, but are often contested by defense counsel. The adaptation of the justice system to the pandemic, including frequent remote proceedings, presents new opportunities for countering these tactics. The authors conducted a review of pandemic-era federal court rules to offer concrete prescriptions for district courts on how to proceed when an individual litigant resides outside of the United States. In so doing, the authors aim to ensure that a worker’s return to their country of origin can no longer be used by employers to block their access to justice.

Jeffrey J. Rachlinski, Henry Allen Mark Professor of Law Andrew Wistrich, Adjunct Professor of Law

“Benevolent Sexism in Judges” (May 25, 2021), San Diego Law Review, vol. 58, no. 101. Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.

Nelson Tebbe, Jane M.G. Foster Professor of Law

“The Principle and Politics of Equal Value” (July 12, 2021), Columbia Law Review (forthcoming). An unfamiliar equality principle is gaining prominence in constitutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the government’s interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implications for other guarantees in constitutional law. Tebbe offers two arguments. First, a version of equal value holds real attraction, not only within religious freedom law but also in areas such as freedom of expression, reproductive rights, and equal protection for racial minorities. Second, however, the rule is operating in a patterned manner, favoring traditional religions at a moment when their social status is facing contestation, and extending to decisions concerning free exercise and free speech but not nonestablishment, due process, or equal protection. That implementation promotes a problematic political program. If the account here is correct, then equal value promises not an antidote to excessive judicial deference, as some have claimed, but instead a controversial politics.

Chantal Thomas, Radice Family Professor of Law

“Race as a Technology of Global Economic Governance” (April 2021), UCLA Law Review vol. 67, no. 6. This article offers an account of the role of race in global political economy—in particular, how to understand racialization as part of the process by which institutions of economic hierarchy not only were created but continue to be legitimated. It offers the conception of race as a technology: the product of racialized forms of knowing, which serve the practical goal of maintaining and legitimating hierarchy, in particular in the context of political economy. The article begins by considering the monumental scope of related work that has gone before, both within the legal academy and in other scholarly disciplines. It then offers a few narratives of key dimensions of the contemporary global economy—commodity production and labor migration—and a reflection on the international legal doctrines and institutions that maintain these phenomena as indicia of economic inequality. It concludes by considering race as a technology of global economic governance. The conception of race as a technology of global economic governance highlights multiple connections between racialization, law, and global political economy: race as a technology of empirics, in which racial categories purported to be based on empirical knowledge; race as a technology of legal rule, in which laws and institutions helped to shape, as well as enforced, the identity constructs purportedly rooted in empirical knowledge; and race as a technology of economic allocation and production, itself dependent on the knowledge and practice of the technologies of empirics and legal rule, in which one’s racial identity has directly influenced one’s place in global chains of production and consumption.

Saule Omarova, Beth and Marc Goldberg Professor of Law

“The People’s Ledger: How to Democratize Money and Finance the Economy,” (October 20, 2020), Vanderbilt Law Review (forthcoming). The COVID-19 crisis underscored the urgency of digitizing sovereign money and ensuring universal access to banking services. It pushed two related ideas—the issuance of central bank digital currency and the provision of retail deposit accounts by central banks—to the forefront of the public policy debate. To date, however, the debate has not produced a coherent vision of how democratizing access to central bank money would—and should—transform and democratize the entire financial system. This lack of a systemic perspective obscures the enormity of the challenge and dilutes our ability to tackle it. This article takes up that challenge. It offers a blueprint for a comprehensive restructuring of the central bank balance sheet as the basis for redesigning the core architecture of modern finance. Focusing on the U.S. Federal Reserve System (the Fed), the article outlines a series of structural reforms that would radically redefine the role of a central bank as the ultimate public platform for generating, modulating, and allocating financial resources in a democratic economy—the People’s Ledger. On the liability side of the ledger, the article envisions the complete migration of demand deposit accounts to the Fed’s balance sheet and explores the full range of new, more direct and flexible, monetary policy tools enabled by this shift. On the asset side, it advocates a comprehensive qualitative restructuring of the Fed’s investment portfolio, which would maximize its capacity to channel credit to productive uses in the nation’s economy. This compositional overhaul of the Fed’s balance sheet would fundamentally alter the operations and systemic footprints of private banks, funds, derivatives dealers, and other financial institutions and markets. Analyzing these structural implications, the article shows how the proposed reforms would make the financial system less complex, more stable, and more efficient in serving the long-term needs of the American people.

Kristen Underhill, Professor of Law (with coauthor Doron Teichman)

“Infected by Bias: Behavioral Science and the Legal Response to COVID-19,” (April 7, 2021), 47 American Journal of Law and Medicine 205 (2021). This article presents the first comprehensive analysis of the contribution of behavioral science to the legal response to the COVID-19 pandemic. At the descriptive level, the article shows how different psychological phenomena such as loss aversion and cultural cognition influenced the way policymakers and the public perceived the pandemic, and how such phenomena affected the design of laws and regulations responding to COVID-19. At the normative level, the article compares nudges (i.e., choice-preserving, behaviorally informed tools that encourage people to behave as desired) and mandates (i.e., obligations backed by sanctions that dictate to people how they must behave). The article argues that mandates rather than nudges should serve in most cases as the primary legal tool used to regulate behavior during a pandemic. Nonetheless, this article highlights ways in which nudges can complement mandates.