According to a familiar and influential analysis, antipoverty programs are structured by distinctions between the deserving and undeserving poor. Through techniques like behavioral conditions on benefit eligibility, these moral distinctions divide the poor and interfere with providing assistance to all those in need. This analytical framework animates much critical scholarship on social welfare...
The Pursuit of Legal Rights—and Beyond
Just over thirty years ago, in a seminal trilogy of books, Joel Handler and his collaborators made three foundational contributions to the study of public interest lawyers. The first was theoretical, defining public interest law as a positive externality producing legal activity; the second was organizational, conceptualizing public interest law as an industry with multiple sectors that provided...
Essays in Honor of Joel F. Handler
For more than five decades, Joel Handler’s remarkable influence, range, and productivity have made him one of the world’s leading scholars of social welfare policy and administration, government bureaucracy, law and social change, and sociolegal theory. The excellence of his research has been recognized through such honors as his election to the American Academy of Arts and Sciences and the Law...
Learning in Lockdown: School Police, Race, and the Limits of Law
Nationally, K–12 schools are increasingly relying on police officers and criminalized security measures like metal detectors and random searches in an attempt to make schools safer. In New York City, officers patrolling prison-like schools have acutely harmful effects, leading the New York Civil Liberties Union (NYCLU) to file a class action lawsuit in 2010 alleging the systemic violations of...
Balancing Judicial Misvaluation and Patent Hold-Up: Some Principles for Considering Injunctive Relief After eBay
It is increasingly common for patent infringers to sink substantial resources into a product’s development, manufacture, and marketing before a patentee alleges infringement. Infringers may sign contracts, hire employees, and purchase specialized facilities and equipment—all before realizing that their product might infringe someone else’s patent. If a patent holder successfully proves...
Freedom of Contract in an Augmented Reality: The Case of Consumer Contracts
This Article argues that freedom of contract will take on different meaning in a world in which new technology makes information about places, goods, people, firms, and contract terms available to contracting parties anywhere, at any time. In particular, our increasingly “augmented reality” calls into question leading justifications for distrusting consumer contracts and strengthens traditional...
Airspace in a Green Economy
The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. Unfortunately, a growing number of policies aimed at promoting sustainability disregard landowners’ airspace rights in ways that can cause airspace to be underutilized. This Article analyzes several land use conflicts emerging in the context of renewable...
A Minimalist Approach to State “Bankruptcy”
Increasingly finding themselves in fiscal straightjackets, states have been turning to austerity measures, tax increases, privatization of services, and renegotiation of collective bargaining agreements. Absent a federal government bailout, however, states will also need debt relief if their debt burden becomes so crushing that reasonable efforts at fiscal reform will fail to avoid default. Some...
The Irony of International Business Law: U.S. Progressivism and China’s New Laissez-Faire
As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominently in federal law. But the dominant paradigm through which academics and policymakers continue to view that law—the so-called Washington Consensus—proves deeply misleading. A more accurate account of the components, origins, and...
The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry—and Why Congress Should Promote It
Newspaper executives have been struggling for the past decade to slow the sharp and unprecedented decline of their industry. While no effort has worked, one promising business model would be to charge for access to online content. But only the rarest industry leaders have felt comfortable making the move to a paid-content model without industry-wide agreement, and such an agreement would be a per...
Qualified Immunity After Pearson v. Callahan
In Pearson v. Callahan, the U.S. Supreme Court altered the contours of the qualified immunity defense with the intention of changing when and how federal courts make constitutional law. Qualified immunity is the primary defense to constitutional torts against government officials. Before Pearson, courts were required to determine if an official had violated a constitutional right even when that...
Affirmative Action as Government Speech
This Article seeks to transform how we think about affirmative action. The U.S. Supreme Court’s jurisprudence on the subject may appear to be a seamless whole, but closer examination reveals crucial differences between the cases broadly characterized as involving affirmative action. The government sometimes acts in a race-conscious manner by granting a tangible benefit to members of a minority...
Taxing Founders’ Stock
Founders of a start-up usually take common stock as a large portion of their compensation for current and future labor efforts. By electing to pay a nominal amount of ordinary income tax on the speculative value of the stock when it is received, founders pay tax on any appreciation at the long-term capital gains rate. This Article argues that the preferential tax treatment of founders’ stock is...
Administrative Change
For nearly three decades, the U.S. Supreme Court has struggled with the proper treatment of administrative action that departs from agency precedent. Moving toward a stronger theoretical account of administrative change requires exploring an underappreciated feature of all administrative action: the agency’s chosen mode of reasoning. Agencies sometimes execute their regulatory mandates by...