5033 research outputs found
Sort by
One(?) Nation Overextended
Get PDFThe conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased returns from control over a large territory can swamp the transaction costs of building a winning coalition. The obvious solutions are a decrease in the size of the national government, an increase in the costs of constructing winning factional coalitions, or a breakup of the United States into smaller, more manageable units. The first and second options are unfeasible, and the third (secession) is unconstitutional even if feasible
A Unified Framework for Competition Policy and Innovation Policy
Get PDFI describe a model of competition law enforcement that treats competition and innovation policy as the inseparable partners they ought to be. The enforcement authority determines an optimal punishment knowing that if it sets the penalty too high it will reduce firms’ incentives to invest in innovation, and if firms do not invest, new goods and new markets will not be created. The authority therefore moderates the penalty in order to maintain innovation incentives. The implications of this framework for competition policy and for innovation policy are quite different from what is commonly observed today. I discuss implications for competition law enforcement, standard essential patents, and the Supreme Court’s decision in FTC v. Actavis
Chevron at the Roberts Court: Still Failing after All These Years
Get PDFThis article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at how the Roberts Court has handled one of the most important issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action. /= / \u3e/= / \u3eOn the first angle, in an earlier article, I presented data on Justices’ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts’ first four terms in which Chevron was applied by the majority or argued or in a dissent. What I found was that the Court generally split along familiar ideological lines most of the time, with liberals deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations. The updated data presented in this article confirm this general pattern although in recent years the Court has deferred to agency decisions in a higher proportion of the cases. On the second angle, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. On the third angle, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary, capricious review. In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary, capricious standard specified in the Administrative Procedure Act
Arbitration\u27s Discontents: Between the Pernicious and the Precarious
Get PDFArbitration has become a victim of its own success, as its wider use has triggered a flood of doubt, disapproval and denunciation. In consequence, higher visibility for arbitral proceedings and awards has led to increased criticism, both just and unjust, with respect to arbitrator independence and impartiality. A robust dispute resolution process requires balance between fairness and efficiency, keeping arbitrators free from taint while at the same time reducing the prospect of dilatory tactics aimed at sabotaging proceedings. If litigants hope to have their disputes resolved by intelligent and experienced individuals, criteria for arbitrator impartiality and independence will need to be implemented with sensitivity to nuanced and complex fact patterns
The Predictability Paradox: Arbitrators and Applicable Law
Get PDFIn resolution of international contract disputes, arbitrators may sometimes show greater fidelity than courts to the parties’ intentions and established rule of a chosen law, foregoing any policy-making function similar to that sometimes asserted by common law judges. In adjusting international contracts, arbitrators face special tensions in their search for counterpoise between rival notions of predictability, often expressed in imprecise terms like “commercial reality” or “strict letter of the law” which like the humble chameleon take different colors depending on the backdrop
Resolving the Public Pension Crisis
Get PDFThe high profile bankruptcy filing by the City of Detroit, Michigan, has brought to the fore the relationship between pension underfunding and the financial difficulties faced by an increasing number of municipalities and states in the United States. The problem is likely to continue to grow with more municipalities finding it necessary to explore the bankruptcy option or otherwise attempt to reduce pension and other obligations to employees and retirees. This essay is an effort to provoke discussion of the normative issues surrounding pension reform, mainly concerning how public employees and retirees should be treated in municipal bankruptcy. Should pension claimants be treated like any other unsecured creditor, or any other person who suffers when the regulatory background is altered, or is there a case for treating them as victims of a fiscal disaster beyond their control? Is pension reform just one more step in the evolution of the labor market that has made it much more difficult for lower skilled workers to achieve a middle class lifestyle? If so, how should the law react? The essay also includes some discussion of the fascinating federalism issues raised by the potential clash between state law protecting pension rights and federal bankruptcy standards. Should a federal bankruptcy court respect the decision of a state court, that the use of federal bankruptcy to reduce pension obligations would violate state constitutional protection of pension rights? This may be the most interesting federalism dispute in decades
Revulsions of Capital: The Political Law of Slavery in the Epoch of the Turner Rebellion, Virginia, 1829-1832
No full texthttps://scholarship.law.bu.edu/clark_speakers/1081/thumbnail.jp
Can and Should Perez Hilton Be Held Liable for Reposting Celebrities\u27 Private Nude Photos Without their Consent?
No full textOver the holiday weekend, the news broke that celebrities’ password-protected accounts had been hacked and their private nude photos stolen. Actresses Jennifer Lawrence, Kate Upton, and Krysten Ritter were among those targeted. Allegedly, hackers sold the photos to someone who posted them on 4chan and Reddit. The nude images went viral. A section of Reddit calling itself “The Fappening” has been permitted to repost images, even though Reddit has condemned it. Gossip blogger Perez Hilton reposted some of the nude photos of Jennifer Lawrence though he later regretted that decision, first reposting censored versions of the photos and then taking them down altogether
The FTC and the New Common Law of Privacy
Get PDFOne of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States — more so than nearly any privacy statute or any common law tort.
In this Article, we contend that the FTC’s privacy jurisprudence is functionally equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, extends far beyond privacy policies, and involves a full suite of substantive rules that exist independently from a company’s privacy representations