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Foreign Affairs Federalism: The Myth of National Exclusivity
No full textChallenging the myth that the federal government exercises exclusive control over U.S. foreign-policymaking, Michael J. Glennon and Robert D. Sloane propose that we recognize the prominent role that states and cities now play in that realm. Foreign Affairs Federalism provides the first comprehensive study of the constitutional law and practice of federalism in the conduct of U.S. foreign relations. It could hardly be timelier. States and cities recently have limited greenhouse gas emissions, declared nuclear free zones and sanctuaries for undocumented immigrants, established thousands of sister-city relationships, set up informal diplomatic offices abroad, and sanctioned oppressive foreign governments. Exploring the implications of these and other initiatives, this book argues that the national interest cannot be advanced internationally by Washington alone. Glennon and Sloane examine in detail the considerable foreign affairs powers retained by the states under the Constitution and question the need for Congress or the president to step in to provide one voice in foreign affairs. They present concrete, realistic ways that the courts can update antiquated federalism precepts and untangle interwoven strands of international law, federal law, and state law. The result is a lucid, incisive, and up-to-date analysis of the rules that empower-and limit-states and cities abroad.https://scholarship.law.bu.edu/books/1026/thumbnail.jp
Copyright and Tort as Mirror Models: On Not Mistaking for the Right Hand What the Left Hand is Doing
Get PDFThe Way We Pay Now: Understanding and Evaluating Performance-Based Executive Pay
Get PDFOver the last ten years, performance-based equity pay, and particularly performance shares, have displaced stock options as the primary instrument for compensating executives of large, public companies in the U.S. This article examines that transformation, analyzing the structure and incentive properties of these newly important instruments and evaluating the benefits and risks from an investor’s perspective. Notable observations include the following: Although technically “stock” instruments, performance shares mimic the incentive characteristics of options. But performance shares avoid the tax, accounting, and other constraints that have led to uniform grants of non-indexed, at the money options. Performance share plans can be designed to be effectively in, at, or out of the money and these plans often employ relative performance measurement that makes them analogous to rarely observed indexed stock options. But the opacity of performance share plans creates risks for investors, and the two accounting approaches applicable to these instruments both result in systematic undervaluation for executive pay disclosure and financial reporting purposes. Given the growing dominance of these instruments, this article advocates the adoption of a mark-to-market accounting regime for all equity compensation
The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power
Get PDFMany anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This premise, upon which the core of the Court’s subsequent analysis relied, is not, as the orthodox reading suggests, a mere clear-statement rule. By its terms, it is mandatory rather than precatory; and it cannot be reconciled with Holland. It abjures Holland’s holding that a treaty and its implementing legislation must be evaluated together and that, under the Tenth Amendment, the validity of the latter depends upon the constitutionality in this regard of the treaty itself. Further, the federalism-based canon of constitutional avoidance and the background principle on which the Court relied both tacitly, but necessarily, presupposed that Holland is no longer good law. Holland nonetheless continues to represent the most sensible and defensible reconciliation of the tension between the Treaty Clause and the Tenth Amendment. By abandoning Holland, the Court has interpreted the Constitution as disabling the nation from honoring international obligations of the sort at issue in Medellín v. Texas — in which the Court held that the federal government can do what Bond now holds it cannot. Bond took a lamentable step backwards for the United States, recreating one of the paramount problems that beset the nation under the Articles of Confederation
Administrative Constitutionalism at the Borders of Belonging
No full texthttps://scholarship.law.bu.edu/clark_speakers/1084/thumbnail.jp
If Corporations Are People, Why Can’t They Play Tag?
Get PDFThe Supreme Court’s decision in Burnham v. Superior Court — despite producing a splintered vote with no opinion garnering a majority of the Court — made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient or “tag” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and used to be the primary method for determining whether an out of state defendant could be haled into a court. While Burnham held that tag jurisdiction remained constitutionally valid, the court split on the justification for allowing this form of jurisdiction, with four Justices approving the practice under an originalist methodology, and four others approving it based on contemporary notions of fairness.
This article argues that both the originalist and fairness-based tests proposed by the principal opinions in Burnham support allowing the assertion of tag jurisdiction over corporations and other entity defendants through in-state service on their officers. This article shows that at the time of the Fourteenth Amendment’s ratification, corporations were often subject to personal jurisdiction based only on their officers’ physical presence in a forum when served with process. The article also demonstrates that the fairness considerations that led four Members of the Court to endorse tag jurisdiction in Burnham apply with even greater force to modern corporations because of their greater ability to take advantage of the protections and services offered by states outside of their own. Finally, the article examines how the application of tag jurisdiction to corporate entities would be in accord with general trends in constitutional law affording corporations rights equivalent to those of natural persons
Should the President Be Able to Block You on Twitter?
No full textHow should the leader of the free world tweet? President-elect Trump likes to use Twitter, and his love of 140-character-based messages won’t likely change once he enters the White House. This election, more than any other, highlighted the power of social media to influence public opinion. Trump took to Twitter to, among other things, denounce the media, criticize individuals and spread his campaign messages to his more than 15 million followers as @realDonaldTrump. President Obama indicated before the election that the official @POTUS Twitter account he now uses, with more than 11 million followers, would be available to the next president
Cases and Materials on Employment Discrimination: The Field as Practiced, 5th ed.
No full textCoauthored by two reporters from the recently released Restatement on Employment Law and Professor Tippett from the University of Oregon, this casebook provides rigorous coverage of all major areas of employment discrimination law. It includes chapters examining disparate treatment and disparate impact under Title VII and the ADEA. The casebook covers sex discrimination in depth, and includes a new chapter on discrimination against sexual minorities. A separate chapter is devoted to the ADA and the duty of reasonable accommodation. The casebook also examines religious discrimination, affirmative action, and retaliation for the assertion of statutory rights.Interspersed throughout are excerpts from the Restatement of Employment Law and “Practitioner Perspectives,” in which leading practitioners describe their day-to-day work and area of specialization. Cases are accompanied by notes that test a student’s basic understanding of the material (labeled “Test Your Understanding of the Material”), as well as informative notes providing context.https://scholarship.law.bu.edu/books/1100/thumbnail.jp
Health Care and the Myth of Self-Reliance
Get PDFBoth pillars of the Affordable Care Act that are designed to facilitate universal coverage — the low-income tax subsidy and Medicaid expansion — have been subject to high-profile Supreme Court cases. While in King v. Burwell the Court saved the ACA’s low-income subsidy, in NFIB v. Sebelius the Court frustrated Medicaid expansion, at least temporarily. We argue that there is a deeper story about health care access for the poor. Drawing from the history of the American health care system, vulnerability theory, and demographic data, we demonstrate that all Americans lead subsidized lives and could find themselves quickly moving from the private to the public system. We contend that the apparent political preference for private, or “hidden,” government assistance over public, or “visible,” government assistance has its roots in the American myth of self-reliance. Our analysis debunks this myth and reveals that the line between hidden and visible government assistance fails both theoretically and empirically. We conclude that a single government program for the poor would be more economically and administratively efficient
The Appearance and the Reality of Quid Pro Quo Corruption: An Empirical Investigation
Get PDFThe Supreme Court says that campaign finance regulations are unconstitutional unless they target quid pro quo corruption or its appearance. To test those appearances, we fielded two studies. First, in a highly realistic simulation, three grand juries deliberated on charges that a campaign spender bribed a Congressperson. Second, 1271 representative online respondents considered whether to convict, with five variables manipulated randomly. In both studies, jurors found quid pro quo corruption for behaviors they believed to be common. This research suggests that Supreme Court decisions were wrongly decided and that Congress and the states have greater authority to regulate campaign finance. Prosecutions for bribery raise serious problems for the First Amendment, due process, and separation of powers. Safe harbors may be a solution