Law and Historical Materialism

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. Others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was—and remains—disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world

Playing to Win: The Use of Export Controls to Address Non-military Strategic Competition

Technology and national security have been intimately related throughout American history. Over the past eighty-five years, the United States has increasingly made use of export controls to prevent adversarial countries from using the fruits of its technological advancement to strengthen their militaries and harm American interests. Today, strategic competition with the People’s Republic of China involves a myriad of technologies which present risks outside of, as well as within, the military context. Chinese exports of technologies, including artificial intelligence, quantum computing, and 5G communications, can promote the country’s authoritarian model abroad, enable economic coercion, and help to enrich the regime. The Belt and Road and “Made in China 2025” initiatives illustrate China’s use of novel technologies to further its global ambitions. Export controls may help to confront these threats. This note asks whether the Bureau of Industry and Security (a government body tasked with implementing export controls) can regulate exports of novel technologies for purposes of non-military strategic competition. Through examination of the statutes authorizing export controls and of the deference traditionally afforded to the Executive in administrative and foreign affairs matters, this note concludes that such export controls are authorized

The Road to Slow Deportation

Traffic stops are the most common form of police-initiated contact with members of the public. The sheer volume of traffic stops combined with their use as a pretext to surveil Black and Latiné communities has generated substantial scholarship and movements for police reform. Yet this commentary assumes that the subjects of traffic stops are U.S. citizens. At the same time, scholarship on the intersection of criminal and immigration law and the convergence of their enforcement methods focuses on traffic stops as the immediate entry point for removal proceedings. This Article addresses the gap in literature by describing the experience of noncitizens who endure frequent traffic stops that result in neither immediate criminal nor immigration proceedings but nonetheless produce significant legal and nonlegal consequences—consequences that are likely to grow under a second Trump administration. This Article frames the experience of traffic stops for noncitizens as a form of “slow deportation.” It describes how the use of traffic stops to police noncitizens extends the system of racialized social control to immigrant communities with the effect of surveilling both race and status. It surveys scholarship across disciplines, racial categories, and citizenship status and uses our clients’ stories to map the cumulative, compounding, and subterranean harms of traffic stops that culminate in the emotional, social, and sometimes legal exclusion of noncitizens and their families. This Article concludes by proposing new approaches to counseling, policy reform, and coalition building informed by the lens of slow deportation

Justice on the Home Front: Domestic Prosecution of Foreign Combatants During Wartime

Russia\u27s 2022 full-scale invasion of Ukraine produced a shock to the world order. The conflict has led to immense suffering for the Ukrainian people, many of whom have fled their homes or are directly involved in the fighting. In some instances, the use of improper tactics by both sides exacerbates the devastation, even amounting to war crimes. Although the war rages on, justice efforts have already begun. International tribunals and foreign countries’ domestic courts have initiated investigations into alleged violations of international law and prosecutions of the perpetrators. The most significant effort, though, has been within Ukraine’s own courts. These domestic war-crimes trials of Russian combatants are occurring on an unprecedented scale despite the difficulty of ensuring fair trials during wartime. This Note examines Ukrainian war-crimes prosecutions through a human-rights-based lens, concluding that their procedural shortcomings undermine substantive and symbolic benefits. It then offers several recommendations for a better path forward. Determining the appropriate framework for wartime justice in Ukraine is critical because it will likely serve as a model for transnational conflicts to come

To Infinity and Beyond (And Beyond): The Legal and Ethical Imperative for Rocket Reusability

Although the Space Shuttle’s first flight was in the 1980s, reusable rocket technology did not achieve mainstream viability until SpaceX’s reusable Falcon 9 rocket revolutionized access to space. This note argues that transitioning to reusable rocket technology is not only a practical and economic advancement, but also a legal and ethical imperative. By analyzing reusable rockets through the “due regard” framework of the Outer Space Treaty, this note demonstrates how reusable rockets mitigate space debris, expand access to space, and can reduce environmental harm. Additionally, reusable rockets address critical ethical concerns by lowering barriers to space exploration, allowing the benefits of space exploration to be shared by more nations, and conserving resources which can be redirected to other pressing needs on Earth. As the global launch cadence continues to rise, widespread adoption of reusable rocket technology is essential to ensuring the long-term sustainability of space exploration while fulfilling international legal obligations and inherent ethical responsibilities

Slowing the Burn: Incentivizing Safer Development through Wildfire Hazard Mapping

Climate change has accelerated the frequency and severity of natural disasters globally and wildfires are no exception. In part, wildfires have intensified due to climate change, short-sighted fire suppression policies, and the rapid influx of people and development in hazardous regions. Like other natural disasters, wildfires will continue to pose an ever-increasing threat to communities nationally. And the federal government\u27s default approach of providing aid after disaster strikes will only continue to become more unsustainable as climate change worsens. Yet, proactive measures that exist to mitigate risk—such as hazard mapping and financial assistance to support adaptation and resilience at the local level—are often underfunded or, increasingly, nonexistent. This Note argues that federal aid should prophylactically prioritize risk reduction. By helping local and state governments identify at-risk regions through hazard mapping and conditioning future aid on proactive resilience efforts, Congress can ensure that federal spending reduces, rather than reacts to, the damage that future natural disasters will cause

The Judicial Administrative Power

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders. This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and considers the role the activities play for the modern federal judiciary. When judges participate in judicial administration, they are ordinarily performing one of three actions: they are rulemaking, they are managing, and they are communicating. These categories are imperfect. But they provide a useful backdrop against which to demonstrate the federal judiciary’s considerable administrative power, which ranges across an array of domains and affects the private litigants who come before the federal courts, the rights of the judges and judicial employees who run those courts, and the public more generally. Based on these observations, we argue that the judicial administrative power has profound consequences that carry us far beyond baseline questions of whether or to what extent judicial administration facilitates or improves federal adjudication. Judicial administration upends core notions of what makes the judiciary the judiciary. By freeing the judiciary from the constraints of an individual case or controversy, judicial administration shuffles the means through which certain rights-related problems reach the federal judiciary, empowers the judiciary to proactively solve problems of its own choosing, and alters the considerations viewed as appropriate for judges to weigh when their decisions affect people’s rights. And, from the perspective of the coordinate branches, the judicial administrative power similarly unsettles traditional notions of the role of the judiciary in interbranch decision-making. Judicial administration facilitates, aggregates, and channels judicial expertise, putting it to use throughout the whole of our government and making the judiciary a more forceful advocate for its own interests. Viewed through a separation of powers lens, judicial administration blurs the lines between legislative, administrative, and adjudicatory forms of governance and works to the detriment of certain higher-level values like democratic accountability, transparency, and the rule of law. We conclude with a set of proposed reforms that would respond to these challenges by treating the judicial administrative power as administrative first and judicial second—and not the other way around. First, Congress should emulate the institutional design of the Sentencing Commission and assign certain judicial administrative responsibilities to new independent agencies. Second, generally applicable good governance provisions—like the Freedom of Information Act and some Administrative Procedure Act requirements—should be extended to at least some extent to a variety of judicial administrative acts. Finally, Congress should reduce the Chief Justice’s singularly powerful role in judicial administration by reassigning many of the Chief Justice’s administrative duties to a more diverse group of Article III judges and judicial stakeholder

Shareholder Litigation in Delaware: An Empirical Investigation

The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, motions, fees, outcomes of each motion filed, and final disposition of the case. We begin this overview of our study by focusing closely on differences our data shows exist among the three forms that such suits take: class actions, derivative suits, and individual suits. We analyze how experiences with such suits vary depending on a range of variables, such as the form of the suit, the nature of the suit’s plaintiff, whether the suit involves a public company (and, if so, the public company’s relative size), whether the suit involves an acquisition, and the suit’s final disposition (e.g., dismissed, settled, adjudged). In this inquiry, nearly one-quarter of the suits in our dataset involve purely independent claims, which provide a ready reference to assess whether representative suits (i.e., class and derivative claims) reflect long-feared agency costs from their counsel. Commentators have long asserted class and derivative suits suffer such costs because the suit’s representative plaintiff is a mere figurehead and the plaintiff’s counsel is the one with true skin in the game. This study also provides a time-series analysis that allows us to analyze evolving trends in the data. To do this, we first divide our database into acquisition-related cases (52% of the sample) and non-acquisition-related cases (48% of the sample). We next separate acquisition cases into three time periods that are distinctly impacted by economic and legal developments. For example, one of our time periods enables us to observe the full impact of a trilogy of important Delaware court decisions: Kahn v. M&F Worldwide Corp., Corwin v. KKR Financial Holdings LLC, and In re Trulia, Inc. Stockholder Litigation. Finally, our data provides a rich backdrop against which the social value of shareholder litigation can be assessed. Not only do we present extensive data on the final dispositions of the cases filed during our sixteen-year study period, but we also combine that information with data bearing on attorney effort during the course of litigation, fees awarded, and the outcomes of the suit. In this context, we gather information on frequent-filing attorneys and law firms. One important finding of our study is that while a small handful of attorneys garner significant fee awards, this cohort of attorneys does not overlap the short list of attorneys and firms that constitute about half of all complaint filings, which we refer to as “frequent filers.