Volume 2014, No. 3


PDF link Presidential Government and the Law of Property

By Seth Davis

This Article introduces a phenomenon that has been overlooked in the literature on property lawmaking: presidential governance of property law. On the conventional account, contributing to the development of the property system is about the last thing we would expect to see presidents doing. Yet the president is uniquely situated to treat property as a system, not just as a right, and presidents expressly affect the property system. While presidents do not, cannot, and should not control property lawmaking, recognizing their influence opens up new lines of inquiry that we miss when we think of property simply as bundle of rights—the now-dominant understanding of property law. Focusing upon the unfamiliar category of presidential governance of property forces us to unpack the link between property’s structure and function on the one hand and institutional choice on the other. This link involves variables of institutional choice that are rooted in constitutional separation of powers and federalism as well as a pragmatic assessment of how the property system works.

The first variable concerns the quality of property decision making. The second focuses upon the mixture of uniform and diverse structures of rights and duties within property law. The third involves stability and flexibility, and the risk of turmoil and instability, within the property system. The balance of these three variables dictates that the breadth and depth of presidential governance of the property system should vary based upon differences among resources and contexts of ownership. Surprising as it may sound given our conventional understanding of what property law is and how it is made, we should not ignore presidential governance of property—not in how we teach property law or in how we write about it.

PDF link Food Law & Policy: The Fertile Field’s Origins and First Decade

By Baylen J. Linnekin & Emily M. Broad Leib

Legal knowledge, learning, and scholarship pertaining to the production and regulation of food historically centered around two distinct fields of law: Food & Drug Law and Agricultural Law. The former focuses on the regulation of food by the Food and Drug Administration under the Food, Drug, and Cosmetic Act, while the latter examines the impacts of law on the agricultural sector’s production of food and fiber. Neither field—alone or in tandem—focuses in whole or in part on many of the most pressing legal issues that currently impact our food system. Consequently, elements of these two fields converged roughly one decade ago to create a significant and distinct new field of legal study: “Food Law & Policy.” This field explores legal and policy issues well outside the scope of Food & Drug Law and of Agricultural Law to address important questions about food that had never been explored fully within the legal academy. Food Law & Policy embraces a broader study of laws and regulations at all levels of government that impact the food system—covering everything from local regulations pertaining to farmers’ markets or food trucks to federal policies pertaining to obesity or hunger.

Food Law & Policy now enjoys a strong and growing presence throughout the legal academy. This Article introduces ten categories of original empirical data to document the field’s vitality—including figures on law school courses, legal scholarship, clinical legal programs, and student societies at U.S. law schools. It details the past and present of Food & Drug Law and Agricultural Law alongside that of Food Law & Policy. The Article demonstrates that Food Law & Policy has proven to be a timely and vibrant addition to the legal academy and suggests next steps in the ongoing development of the field.

PDF link Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR

By Scott J. Shackelford & Anjanette H. Raymond

For some time now, there has been a well-documented movement toward alternative dispute resolution (ADR) and away from traditional litigation through courts in the United States and around the world. The benefits of the ADR movement are manifold, ranging from greater control over the process of dispute resolution to alleviating overburdened courts. But the costs of ADR are also becoming increasingly apparent, including a relative lack of due process protections. A more recent phenomenon is the marriage of technology to ADR, creating the field of online dispute resolution (ODR). Increasingly, both public- and private-sector actors are moving towards ODR to resolve low-value disputes. Some companies, such as Modria, are seeking to increase efficiency still further through automating the dispute resolution process through the use of algorithms, effectively removing humans from the justice delivery system.

The limited literature analyzing the ODR movement has so far neglected the ethics of these emerging systems. Where should policy makers, business leaders, and societies draw the line between disputes that may be resolved online—potentially using an automated system—and those requiring in-person hearings? This Article seeks to begin the conversation about these questions by reviewing the current technological state of ODR and its use by companies—including eBay, Modria, and Cybersettle, among others—before moving on to consider ethical ODR issues including balancing such values as transparency, efficiency, and conflict dynamics. Finally, this Article makes suggestions for regulating this burgeoning industry, drawing from the interdisciplinary literature on polycentric governance.


PDF link Reevaluating the Seventh Circuit’s Approach to Contract Clause Claims in an Age of Pension Reform

By Thomas McDonell

In the current era of fiscal crises, states consistently breach their own contracts with public employees to save money. Lawmakers argue that they have no choice but to enforce large pension cuts and modify collective bargaining agreements, while employees feel that the state has unfairly targeted them (especially when the state has other options, like raising taxes). Courts, faced with the difficult task of balancing these competing and compelling interests, must now consider the legality of such action by the state. Constitutional challenges to state impairment of contract may provide the only substantive remedy for affected employees. Therefore, plaintiffs around the country have sensibly argued that particular state action (like severe pension cuts) violates their rights under the Contract Clause of the U.S. Constitution. In evaluating Contract Clause claims, the Supreme Court requires courts to consider (1) whether state action impaired a contractual obligation; (2) whether the impairment is substantial in nature; and (3) whether the impairment nonetheless is reasonable and necessary to serve an important public purpose.

While most circuits look at all these factors and engage in a true balancing test, the Seventh Circuit effectively bars all Contract Clause claims at their outset because of its narrow definition of the term “impairment.” This Comment specifically challenges the Seventh Circuit’s narrow interpretation of state “impairment” of contract and argues that 42 U.S.C. § 1983 is the most appropriate vehicle for making Contract Clause claims. The Seventh Circuit should adopt a three-pronged balancing test that would evaluate the reasonableness and necessity of a state’s chosen course of action. Courts should examine whether a state’s unilateral breach of a contract was reasonable and necessary to serve an important public purpose.