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Two Views on the Nationwide Injunction
Get PDFI feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me
Franchise Regulation for the Fissured Economy
Get PDFFranchise stores employ nearly nine million people in the United States. Many franchisors, which own trademarks that they license to franchisees, are among the largest, most sophisticated corporations in the United States. Yet franchise store employees are often paid below the minimum wage and frequently report unsafe workplaces and workplace discrimination.
The thesis of this Article is that widespread employment law noncompliance in franchise stores is symptomatic of the failure of employment law to recognize the measures that franchisors use to protect their brand in franchise stores. Franchisors often develop intensive relationships with franchisees and franchise store employees as representatives of the brand, and provide franchisees with required or recommended personnel standards and business tools. These standards and tools can encourage employment law violations by triggering employment law obligations, which franchisees, who own and operate franchise stores, have little incentive to understand or follow. Yet the joint employer doctrine, which holds contractors that are joint employers jointly and severally liable for employment law violations by subcontractors, often does not recognize these measures as evidence of joint employment. Courts, accordingly, often reject joint employer claims against franchisors, even when the franchise relationship may mask or encourage employment law violations in franchise stores.
Although most scholarship focuses on the joint employer doctrine to deter subcontractor employment law violations, this Article argues that improving compliance in franchise stores will require liability standards that recognize these unique features of franchising and do not depend on a joint employer determination. It identifies apparent agency and misrepresentation theories in existing law that would hold franchisors liable for employment law violations based on their representations to franchisees and franchise store employees. It offers these standards as a conceptual framework to deter employment law violations in franchise stores and evaluates potential over- and underdeterrence critiques. This analysis has important implications for the governance of contractual relationships in which a firm contracts out for employees who represent the firm\u27s brand to the consumer
How Do Lawyers Think Differently from Stem Professionals When Approaching Problems and Risk
Get PDFConference: Bridges II: The Law-STEM Alliance & Next Generation Innovation
Following the Bridges II conference, a select group of scholars met to discuss challenges facing law and technology. NULRO, along with David Schwartz and Leslie Oster, asked the participants to respond to prompts generated from that meeting
A VATCoin Solution to MTIC Fraud: Past Efforts, Present Technology, And the EU’s 2017 Proposal
Get PDFOn October 4, 2017, in an effort to recover some of the VAT lost annually, the European Commission proposed “far-reaching reforms.” The immediate target is a €50 billion slice of an estimated €150 billion overall annual loss. In its proposal the Commission is looking only at Missing Trader Intra-Community (MTIC) fraud in goods.Goods (alone) are targeted.If we have learned anything about MTIC fraud since January 1, 1993, it is that fraudsters engaged in this activity are exceptionally agile. MTIC frauds migrate and mutate on command. For example, MTIC fraud in cell phones quickly migrated to computer chips in 2006 when the UK launched Nemesis, a computer program which tracked cell phones by IMEI (International Mobile Equipment Identity) numbers. But, as tax authorities chased the fraudulent computer chip trade, cost-conscious fraudsters migrated out of the small, high value, easy to transport chips market into tradeable services. Transferring supplies with a mouse and a keyboard is easier than shipping computer chips across EU borders to complete a fraud. And besides, the tax authorities were not looking in this direction at the time.MTIC has now moved strongly into digitally transferred services, notably emissions permits, VoIP, and phone cards. If we know anything about MTIC, it is that it refuses to be confined to a country, a type of supply, or a commercial sector. In the gas and electric markets MTIC fraud occurs in a “virtual economy,” one that intersects with the real economy only at the very beginning and very end of a highly controlled fraud chain. In other words, gas and electric MTIC fraud effectively occurs in the “cloud.” What could be easier, or harder to prevent?The difficulty with the Commission’s October 4 proposal and its impact analysis is that it ignores the fungibility of MTIC fraud. Stopping one MTIC manifestation, will not necessarily reduce the overall economic loss. A system-wide fix is needed.This paper considers the Commission’s “far-reaching reform” proposal of October 4, 2017 in three respects.• First it considers an immediate antecedent reform, one proposed by the Commission in 1996 that relied on a clearing house mechanism. This proposal failed largely due to a lack of trust among the Member States that were required to share collected revenue. Trust remains a critical component of any solution, and needs to be part of this “far-reaching reform” proposal.• Secondly, it demonstrates how the current proposal works, how it prevents some types of MTIC fraud outright, and limits others. This discussion accepts the Commission’s proposal as it finds it, and ignores the fact that a simple migration of MTIC goods frauds into services frauds would likely swallow up all the gains in MTIC prevention that this proposal brings to the table.• Thirdly, it presents a blockchain solution that employs VATCoins. The paper concludes that the Commission’s current proposal, if placed on a blockchain would bring trust back into this discussion in a manner that allows the Commission’s current proposal to flourish as a solid technological extension of its original 1996 proposal.This paper concludes that if the Commission’s current proposal places cross-border transactional data on a blockchain, and utilizes VATCoins instead of fiat currency for cross-border tax payments, then the Commission will resolve the problem of Member State trust that doomed its 1996 solution. This solution can be rolled out over all cross-border trade (goods and services), and it should be if we hope to immunize the VAT from MTIC
Lucia and the Future of Administrative Adjudication
No full textWhat is to become of administrative adjudication and adjudicators? As the never-ending assault on the administrative state marches on, administrative adjudication is in the cross-hairs of reformers. The latest chapter in the ongoing controversy over the proper role of adjudication within administrative agencies is the Supreme Court’s recent decision in Lucia v. SEC, that SEC Administrative Law Judges (ALJs) are “Officers of the United States” and thus must be appointed pursuant to the Appointments Clause of the Constitution. What this means, in effect, is that all ALJs must be appointed either by the President, a Court of Law or a Department Head. In the Court’s view, the result in Lucia flowed inexorably from precedent, and thus did not constitute a significant extension or revision of existing law. But the decision papered over important lingering questions concerning administrative adjudication, which are likely to arise in the not-too-distant future
A Few Observations about the Curious State of Massachusetts Labor Law: Public-Sector Unions after Janus
Get PDFThis essay focuses on this hurried, even panicked response to Janus in Massachusetts and evaluates the likely outcome that encouraging a public union to treat member employees in one way and non-member employees in a distinctly less generous way will have for employees and the unions. I begin, in Part II, by noting (and explaining) the first and most apparent oddity in this story: why is an employer - i.e. the state - rushing to help its putative, arms-length bargaining partners? In Massachusetts, there are many different public-sector unions. School teachers, 13 firefighters,14 clerical workers, 15 state and local police,16 and many others17 are all represented. What would motivate the state to want to protect union finances which might be jeopardized by the Janus decision?
Part III examines the specific proposals and concludes that either state or federal constitutional claims may prevent implementation of the legislative proposals. I also note that these proposals cry out for easy comparison to the legislative reactions of numerous southern state legislatures following the Court\u27s decisions in Brown v. Board of Education18 and subsequent civil rights decisions and reek of a worrying kind of resistance to the Court\u27s authority at the local level.19 Finally, in
Part IV I suggest that, if implemented, Janus holds great promise for re-setting the relationship between public-sector unions and state legislators that has become very worrying and tremendously expensive for taxpayers. When Abood was decided in 1977 almost no one20 anticipated the growth of public-sector unions and their outsize influence on state and local politics. Public unions, like their private sector counterparts, play an important role in the regulation of a large part of the American workplace. The corrosive dynamic that has developed between the unions and the legislators/employers has, however, contributed significantly to the bankruptcy of more than one American municipality in recent years,21 and threatens the financial health of more than a few states.2
Distribuzione (Commerciale) e Diritto: Variazioni su Tema
No full textL’ordinamento giuridico italiano appare attualmente in una fase di profondissima trasformazione. Il ruolo assunto negli ultimi lustri, sebbene a Costituzione invariata, dalla giurisprudenza (in particolare civile e amministrativa) e dalle autorità indipendenti, e il modo in cui l’una e le altre si relazionano con il formante legislativo, oltre che tra loro, rappresentano novità che incidono sul modo di essere del diritto e, per conseguenza, del mercato e della società.
Non a caso la dottrina, da qualche tempo, discute diffusamente di certezza del diritto, prevedibilità dell’esito dei giudizi, oltre che di giustizia, proporzionalità, ragionevolezza ed equità delle soluzioni pretorie.
A tutti questi temi, come noto, Roberto Pardolesi ha dedicato, anche di recente, attente riflessioni. Il suo settantesimo compleanno è, dunque, parsa occasione propizia per raccogliere contributi in argomento tra i suoi allievi ed amici, che oggi confluiscono in questo volume di scritti in onore. Tanti ulteriori allievi e amici di Roberto avrebbero meritato di essere coinvolti nell’iniziativa. Ma, come noto, tipicamente le raccolte in onore riescono, per varie ragioni, ad intercettare solo una piccola parte di quanti sarebbero interessati a parteciparvi. A chi manca vanno, in ogni caso, le scuse dei (pur volenterosi) curatori di questo volume, che (con ogni probabilità) hanno fallito nell’impresa di raggiungere tutti coloro che a Roberto Pardolesi sono legati da affetto e stima.
Del resto, l’impresa era davvero ardua considerata la dimensione umana del Maestro che con questo volume abbiamo, tutti insieme, desiderato festeggiare
In Defense of Territorial Jurisdiction
Get PDFAs the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.
This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step toward expanding personal jurisdiction, the minimum contacts test has now become a greater restraint on state power than the territorial regime that preceded it. This constriction of state power has been coupled with a doctrine that has become increasingly confusing and malleable, unmoored from coherent constitutional and theoretical foundations, and unable to respond to economic and technological changes. The Territorial Model, by contrast, gave states numerous tools to assert jurisdiction over out-of-state defendants, including quasi in rem jurisdiction, consent statutes, and constructive presence. The rules governing personal jurisdiction were relatively straightforward and relied on objective criteria that were easily ascertainable with minimal litigation costs. Once the mythology surrounding personal jurisdiction doctrine is dismantled, the original wisdom of the Territorial Model, and the benefits of returning to it, are clear
Critical Dialogue
Get PDFIt is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to discover relatively specific original meanings. I argue that fidelity in interpreting the Constitution requires a moral reading. Fidelity commits us to honoring the aspirational principles embodied in our constitutional text and practice, not merely following the relatively specific original meanings of the Founders. Only a moral reading that aspires to interpret our imperfect Constitution so as to make it the best it can be gives us hope of interpreting it in a manner that may deserve our fidelity
Bounded Rationality, Paternalism, and Trademark Law
Get PDFWe don’t need behavioral economics to understand that trade marks can shape consumer preferences in ways that have little to do with objectively measurable differences in product quality. Scholars, judges, economists, and policymakers have long recognized the tendency of strong marks to skew consumer decisions. The concern lies not only in price effects but with the allocative effects of encouraging investment in persuasive advertising, rather than product innovation or similar “productive” pursuits. While informative advertising can benefit consumers, advertising that creates artificial brand-based differences between otherwise identical products appears not only costly to consumers but also socially wasteful.
This Essay complements the rich—and growing—literature considering the relationship between contemporary trademark law and consumer welfare. Much of this literature focuses on the harms that expansive trademark law poses to consumer interests such as speech, autonomy, and product choice. This Essay considers the consumer/trademark relationship from a different perspective. It seeks to identify some of the cognitive mechanisms through which trademarks, in collaboration with advertising, may skew consumer decisions away from what rational self-interest might suggest. Because these effects can occur even with narrowly-drawn trademark subject matter and scope, they deserve separate attention. A better understanding of these effects may enable a more informed conversation about whether we should worry about them. It also might suggest legal, regulatory, or educational mechanisms to soften or counter some of the more pernicious effects of trademarks without compromising consumer autonomy