Issue 3

What Does the Declaration of Independence Declare?

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STEVEN WILF

What does the Declaration of Independence declare? The simplest answer is that it constituted the United States as an independent sovereign nation. This brief Essay will take a different approach, focusing less on establishing sovereignty and
more on its fashioning the bonds of association that stand independent of legal governance.

One goal of this Essay, on the eve of its 250th anniversary, is to reinvigorate the meaning of the Declaration of Independence. If the Declaration was less significant as a legal instrument declaring sovereignty, then we must be even more
determined in understanding its meaning. How does one read a document in a fresh fashion when it has been scrutinized for so many years? Over time, documents become dusty, overly familiar, and, perhaps worst of all, sacrosanct. No doubt this
is true of the Declaration of Independence—which is often paired with the Federalist Papers as canonized handmaids to the Constitution. This ever-so-brief Essay aims to constitute ourselves as a new, unexpected audience for the text.

This Essay sees the Declaration as an untidy pastiche, a bricolage that is directed to any number of contemporary listeners; with its multiple audiences, shifting rhetorical styles, and different genres, the Declaration of Independence must be seen as a multivocal text. It also argues that the Declaration’s crescendo lies at the end, not the famous lines at the beginning, of the document. All the seemingly unrelated grievances are wrapped around a fundamental shift where it is not a new state that is founded, but rather it is an assumption of mutual duties among Americans that leads to a new social order—if not a new regime—and that this has binding force, as does any legal promise.

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Parenting Under Siege: Reckoning with Coercive Control

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Courtney Cross & Gillian Chadwick

Coercive control is a pervasive form of domestic violence in which one partner engages in a prolonged and multifaceted campaign of abuse in order to gain and maintain dominance over the other partner. While some coercively controlling partners employ physical violence to ensure compliance with their demands, others use exclusively non-violent tactics. In co-parenting relationships, coercive control not only inflicts severe harm on the targeted parent but also affects children as co-victims of both direct and indirect abuse. As a result, co-victim children suffer significant emotional, developmental, and social harm, and adverse health outcomes, even in the absence of physical abuse. Yet legal frameworks addressing domestic violence typically focus on discrete acts of physical violence, adhering to what scholars term the “violent incident model.” Continue reading →

The New Reliability Override

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Benjamin Rolsma

Section 202(c) of the Federal Power Act grants the Secretary of Energy a sweeping authority to exempt electric generation and transmission facilities from any federal, state, or local environmental laws. When Congress first adopted § 202(c) in 1935, it designed the provision as an emergency power that federal regulators could use to force fractious utilities to work together to preserve electricity reliability in times of war or natural disaster. But in the last decade things changed.
This Article, drawing on a novel catalog of all § 202(c) emergencies from the provision’s nearly ninety-year history, is the first to comprehensively describe § 202(c). The Article shows that new pressures on the reliability of the American electrical grid, along with an obscure 2015 amendment to the Federal Power Act, transformed § 202(c). No longer is it used to nudge reluctant utilities into action. Instead, starting in the first Trump administration and continuing in the Biden administration, grid operators facing impending blackouts used § 202(c) orders to allow them to run power plants in excess of Clean Air and Clean Water Act pollution limits. And § 202(c) is set to become even more important. Both the Trump and Biden administrations leaned on the provision in proposed policies for the electrical grid—the former to hinder the energy transition and the latter to push it along. This Article tells § 202(c)’s history, describes its transformation, and critically examines some methods for supervising the Department of Energy’s use of § 202(c).

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Locating Timbre in Copyright Law’s Modern Musical Work

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Lauren Wilson

Copyright law requires courts deciding music infringement cases to locate two copyrights within a single song: one in the “musical work” and another in the “sound recording.” But songs do not naturally divide into such pieces. Instead, judges untrained in music must parse from a unified song the musical elements belonging to each copyright and to whom those copyrights belong. They have historically approached the task as a simple matter of identifying elements notated on a score as belonging to the musical work and placing “everything else” on the sound recording, but such a formalistic approach does not suit the modern popular music at the center of most infringement lawsuits. Continue reading →

Let it Flow: Information Exchange in Video Conferences versus Let it Flow: Information Exchange in Video Conferences versus Face-to-Face Meetings Face-to-Face Meetings

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Hadar Y. Jabotinsky & Roee Sarel

When the COVID-19 pandemic hit, policymakers faced a seemingly difficult choice. On the one hand, health considerations required imposing restrictions on face-to-face meetings. On the other, intuition suggested that switching to video conferencing might lead to information loss. As the pandemic progressed, in-person meetings largely turned digital, including court hearings, lawyer-client consultations, board meetings, and more. But did this turn actually cause an information loss? Continue reading →

Ethical Investments: Correcting ERISA’s Misinterpretation

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Yifat Naftali Ben Zion

The market for socially responsible investing—commonly referred to as ESG
(environmental, social, and governance) investing—is experiencing rapid growth.
Yet a crucial question, that could shape this market’s potential to better our world,
remains unresolved: can institutional investors consider ESG factors when making
investment decisions? These investors hold a significant portion of global
corporate equity, currently valued in the trillions of dollars. Consequently, they
stand in a unique position from which they can influence the actions of
corporations. Continue reading →

First Amendment Protection Under Connecticut’s Free Speech Statute: Inconsistent Interpretations and Disappointing Results

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Elizabeth C. Anderson

Connecticut has taken unique strides in safeguarding employees’ constitutional rights by granting private employees the same First Amendment protections offered to public employees. However, the definition of “discipline” adopted by most courts permits employers to punish employees for exercising their free speech through non-affirmative acts like retracting promised promotions and bonuses. Continue reading →

The Promise of Contract Pluralism

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Andrew Jordan

Many contract theorists argue that contracts are promises. This view is appealing because it can justify the institution of contract law—contract law allows parties to vindicate their promissory rights. But contract-as-promise advocates have seriously misunderstood how promises work. They assume a cartoon version of promises, one that is overly abstract, individualistic, and is singularly fixated on the obligation to do what one promised. Continue reading →

Discovering the Future of Personal Jurisdiction

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Brad Baranowski

A deluge is coming. The Supreme Court’s two most recent personal jurisdiction cases—Ford Motor Co. v. Montana Eighth Judicial District and Mallory v. Norfolk Southern Railroad—have thrown this area of law into even more flux than before. Because of these cases’ heavy emphasis on the fact-intensive nature of personal jurisdiction law, plaintiffs facing down motions to dismiss based on Federal Rule of Civil Procedure 12(b)(2) are going to start asking an obvious question: If the Supreme Court thinks facts are so important to personal jurisdiction, then should I try to get access to more facts? The result will be more requests to conduct jurisdictional discovery, and more courts having to figure out how to decide those requests. Continue reading →

NIMBY Charities

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Lauren Rogal

Neighborhood organizations often advocate for land use policies and decisions that curtail development and entry into the neighborhood. This “not in my backyard” (NIMBY) disposition echoes a long history of exclusionary activity by these organizations and reflects a broader tendency to operate in furtherance of property values and other private interests. Due to substantive and procedural deficiencies in federal tax policy, these organizations often operate as 501(c)(3) tax-exempt charities, a status rightly reserved for organizations that generate broad public benefits. This Article argues for the adoption of clear substantive and procedural rules that restrict charitable status to organizations that either provide tangible benefits to the general public or target their benefits to a materially distressed community. Continue reading →