5033 research outputs found
Sort by
Challenging Arbitral Jurisdiction: The Role of Institutional Rules
Get PDFOne oft-discussed element in arbitration law relates to the judicial function in monitoring the basic integrity of the arbitral process, so the case will be heard by a tribunal that not listens before deciding, and which stays within its mission. Arbitrators must remain within the contours of confines of their authority, has been the subject of well-known national judicial decisions applying the hard law of statutes and treaties. Less-often debated, institutional rules play a vital jurisdiction role in complementing national and international legal norms. The 2012 ICC Arbitration Rules provide an intriguing study of how administrative decisions dovetail into jurisdictional rulings of the arbitral tribunal, both of which would normally remain subject to an ultimate scrutiny by national courts
Melki in Context: Algeria and European Legal Integration
Get PDFThis is a chapter prepared for the volume: Bill Davies and Fernanda Nicola Eds., EU Law Stories: Contextual and Critical Histories of European Jurisprudence, Cambridge University Press, May 2017. In line with the spirit of the book, this chapter tells the story of Melki – a landmark case in the jurisprudence of the CJEU, in a novel way and connects the individual journey of Mr. Melki to the broader context of north-south relations. Besides recounting the lawyerly strategy of Melki’s pro-bono counsel and the predicament of Algerian sans-papiers in France, the chapter aims to contribute to the literature on the structural causes of north-bound economic migration, upon which Melki is grounded. Towards this goal, it analyzes in historical perspective the evolving trade and cooperation deals between the European Union and Algeria. Starting with the late 1950s, when Algeria was a part (though not a member state) of the European Economic Community, the chapter recalls crucial episodes in the history of EU-Algeria relations, which exemplify structural problems and contradictions in the EU’s policies vis-à-vis North Africa. Part III of this chapter builds on our piece “Trade and History: The Case of EU-Algeria Relations” published on line by the Boston University International Law Journal (February 2015)
Patent Trolls and Preemption
Get PDFPatent law is usually thought to be the domain of the federal government, not state governments. Yet over half the states have recently passed statutes outlawing unfair or deceptive assertions of patent infringement. The statutes are aimed at fighting so-called patent trolls, particularly those who send letters to users of allegedly infringing technology — as opposed to the manufacturers of that technology — demanding that each user purchase a license for a few thousand dollars or else face an infringement suit. The Federal Circuit, however, has held that state law claims challenging acts of patent enforcement are preempted by the federal Patent Act unless the patent holder made infringement allegations with knowledge that the allegations were objectively baseless. No court has yet applied this rule to the new state statutes, but it will likely provide patent holders with nearly absolute immunity from liability under the new laws.
Although the Federal Circuit has called this immunity a matter of “preemption,” a close examination of the court’s decisions reveals that the rule is not grounded in the Supremacy Clause but in the First Amendment right to petition the government. Unlike the Supremacy Clause, the First Amendment limits the power of the federal government, not just state governments, so patent holders will also be able to invoke this immunity to thwart impending federal initiatives to fight abusive patent enforcement, such as unfair competition proceedings brought by the Federal Trade Commission and proposals in Congress to outlaw false or misleading statements made in patent demand letters.
This article argues that the broad immunity the Federal Circuit has conferred on patent holders is wrong as a matter of doctrine, misguided as a matter of policy, and inconsistent with a long history of courts enjoining unfair and deceptive acts of patent enforcement. Accordingly, the article suggests a reimagined immunity standard that would not shield extortionate schemes of patent enforcement but would still respect a patent holder’s right to make legitimate allegations of infringement
Deterrence and Antitrust Punishment: Firms Versus Agents
Get PDFAntitrust enforcement regimes rely on penalties against two groups of actors for deterrence: penalties against the violating firm and penalties against the violating firm\u27s agents. Here, I examine the economics of punishing agents versus firms. My area of application is antitrust, but the argument applies generally to other fields in which the government has the choice of punishing the agent, the firm, or both. This analysis suggests that whenever the firm has an incentive, given existing penalties, to engage in some illegal act that may result in relatively modest punishment for its agents, the firm can almost always induce its agents to carry out the illegal act. It follows that almost any plausible effort to use penalties against agents to deter price fixing can be undone by the firm\u27s own system of rewards for agents. For deterrence, penalties against the firm sufficient to eliminate the firm\u27s incentive to fix prices are necessary
Time, Institutions, and Adjudication
Get PDFSome of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an honor and a pleasure to be able to comment on Time, Institutions, and Interpretation, 2 Professor McConnell’s Distinguished Lecture at Boston University School of Law
Civil Disabilities in An Era of Diminishing Privacy: A Disability Approach for the Use of Criminal Records in Hiring
Get PDFAn evaluation of normative and legal frameworks to encourage the employment of people with criminal convictions is in order. While current approaches are likely to eliminate overbroad initial hiring screens, there remains the unfinished project of reintegrating persons with criminal convictions into the workforce. For this, policy tools are needed to discourage the misuse of irrelevant criminal convictions and to encourage a contextualized evaluation of criminal convictions and the fair consideration of applicants’ qualifications separate from them.
This Article proposes a disability normative and legal framework as a useful approach to guide this analysis. Disability laws first consider the privacy interests implicated in medical inquiries. If a medical inquiry has little relevance in employment and is likely to be misused or misinterpreted, it may be shielded on privacy grounds. If medical inquiries are potentially relevant, then the procedural and substantive protections codified in the ADA serve the mutually supportive goals of debiasing employers predisposed to reject qualified applicants and encouraging contextualized evaluations of them. Applied to criminal records, ADA protections would guide a contextualized evaluation of an applicant’s qualifications for the job, and of the workplace risk presented by a criminal conviction. As with some medical information, however, procedural and nexus protections alone may be insufficient to dissuade employers from denying applicants based on minor, distant convictions that do not present a workplace risk. This is particularly true given the lack of objective information about the predictive force of a past conviction. A disability approach would prohibit the use of irrelevant criminal convictions by sealing or expunging them. This approach is consistent with disability norms and would counteract the pervasive assumption that any criminal background is always an unreasonable risk to persons or property, particularly when the applicant is African-American.
This Article proceeds in five parts. Part I briefly summarizes the key features of a disability normative and legal framework that apply to hiring screens, taking personality tests and genetic screens as examples. It also introduces the analogy of criminal records as a civil disability in need of disability privacy and equal opportunity protections. Part II describes the growth of criminal record history as a dominant negative credential in hiring, and the impact of overbroad criminal record hiring screens in reducing employment opportunities for people with criminal records, particularly those who are African-American. Part III discusses the ways in which federal, state, and local governments have responded to the increasing use of civil disabilities as negative markers in employment applications. It then evaluates these regimes, finding that Title VII disparate impact challenges often face insurmountable litigation hurdles, and that many state protections apply a vague “reasonableness” standard to apply criminal record screens. It also finds that procedural protections in some jurisdictions do not go far enough in ensuring an individualized assessment of candidates, that there are few privacy protections, and that those protections that do exist are often easily evaded. Part IV proposes a disability framework that would restrict employer access to long-ago and minor convictions that do not predict future behavior by sealing or expunging these records, while permitting employers to review the criminal records of conditional employees that may predict future behavior, and to reject those conditional employees who present a genuine risk that cannot be accommodated. Part V addresses potential criticisms of this approach—namely, that limiting criminal record inquiries will perversely increase discrimination against African-Americans and that privacy protections will not succeed in restricting employer access to civil disabilities
The FDCA as the Test for Truth of Promotional Claims
No full textPhysicians often prescribe drugs and devices for “off-label” uses not reviewed or approved by the FDA, but the makers of those products are not allowed to promote those uses, as that would evince an intent contrary to their approved labels. This regulatory equilibrium is precarious under an expanding conception of the First Amendment, but such judicial and scholarly analyses turn on unwarranted presumptions about the truth of the manufacturers\u27 promotional claims, a truth that is unknowable until tested by the FDA or courts
The Supreme Court Ruling That Blocked Providers From Seeking Higher Medicaid Payments Also Undercut The Entire Program
No full textIn Armstrong v. Exceptional Child Center, Inc ., the US Supreme Court revisited the question of whether Medicaid providers may seek relief in federal courts when states fail to pay “sufficient” Medicaid rates. A divided Supreme Court held that the Supremacy Clause of the US Constitution does not support such actions, even when states violate the Medicaid Act of 1965. Payment sufficiency is vital to Medicaid’s success in expanding health insurance coverage under the Affordable Care Act. By terminating providers’ ability to seek relief in federal courts, Armstrong makes it easier for states to cut Medicaid payment rates at the same time that millions of new enrollees will enter the program, undercutting operation of the Medicaid program and its role in health care reform
The Substance of Self-Government
Get PDFIn Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government - the value theory of democracy - that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are co-original, the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such rights
Punishment and Blame for Culpable Indifference
Get PDFIn criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely, and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability, and should consider affective and volitional dimensions as well, including the actor’s intentions, motives, and attitudes. One promising alternative mental state is the attitude of culpable indifference. However, we must proceed carefully when permitting criminal liability to turn on culpable indifference and similar attitudes, lest we punish vicious or unvirtuous feelings that are not sufficiently connected to wrongful acts, and lest we punish disproportionately for attitudes that reflect only a very modest degree of culpability