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.
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.
Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR
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.
Reevaluating the Seventh Circuit’s Approach to Contract Clause Claims in an Age of Pension Reform
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.