8227 research outputs found
Sort by
The Liberal Case Against the Modern Class Action
Get PDFThose who classify themselves as liberal generally favor widespread use of class actions as a means of policing corporate misbehavior and protecting the individual worker or consumer against capitalist excesses. In this Essay, however, I take the counterintuitive position that while class action practice could conceivably be modified in ways that make it far more acceptable than it currently is, liberal political theory should be very skeptical of the modern class action device as it currently exists. Defining the foundation of liberal thought as a process-based belief in accountable democratic government and respect for the right of individuals to protect their rights by resort to the judicial process, I find that in all too many cases, the modern class action is substantially inconsistent with this liberal ideal. In their current form, class actions often serve as a means to deceptively alter existing substantive law through backdoor procedural transformation. This undermines both foundational premises of process-based liberalism
Rejection Hurts: Trademark Licenses and the Bankruptcy Code
Get PDFSection 365 of the Bankruptcy Code empowers debtors to reject burdensome executory contracts. From 1988 until May 2019, the effect of such a rejection on trademark licenses was unclear. The Supreme Court’s recent decision in Mission Product Holdings, Inc. v. Tempnology, LLC settled the matter definitively: all rejections under § 365(g) operate exactly as a breach would outside the bankruptcy context. As such, if the trademark license would allow the licensee to continue using the mark after a breach, the licensee may continue to use the mark after a rejection. While this decision comports with the language of the Code and gives effect to the parties’ contracted terms, it may functionally deprive debtors of the ability to reject trademark licenses. The problem lies in trademark law’s quality control requirements, which obligate licensors to exert actual control over the trademark’s quality. If a debtor-licensor rejects a trademark license and then fails to exert this control-—an obligation it should theoretically be relieved of by the rejection-—it could face claims of naked licensing and abandonment. Because a successful abandonment claim would render the trademark much less valuable, or even worthless, bankruptcy courts may refuse to approve such a rejection on the grounds that it does not satisfy the business judgment test. As a result, debtor-licensors may be faced with an unsavory decision: pursue a rejection that does not function to relieve the estate of all its obligations, or assume the license. This Note proposes that an equitable solution is only possible with congressional intervention. Specifically, § 365 should be amended to allow licensees to retain (1) an adjusted prepetition claim to damages for breach of contract and (2) the rights and obligations, as set out in the contract’s breach provisions, to products already produced or possessed by the licensee and controlled for quality by the licensor at the time rejection is approved. The enactment of this brightline, middle-ground solution would adequately balance party interests, give effect to the parties’ negotiated breach terms, and create a more predictable structure for trademark license rejections
Generals & General Elections: Legal Responses to Partisan Endorsements by Retired Military Officers
Get PDFRetired generals and admirals of the U.S. military appear to be endorsing partisan political candidates in greater numbers, with more visibility. This Note argues that the practice represents a clear danger to civilian control over the military and weakens military effectiveness. It explains that while retirees remain subject to military jurisdiction, the existing array of statutory and regulatory restrictions on political activity cannot adequately address the problem. Neither can professional norms be expected to shore themselves up to solve it. This Note describes how political restrictions on service members have evolved over time in response to novel challenges to civilian control. It illustrates that retired officers— who receive lifetime pensions and remain subject to recall —have always been a part of the civilian-control conversation. It also analogizes to judicial ethics, Hatch Act prohibitions, and postemployment business ethics restrictions on military retirees, finding several compelling state interests that could justify narrowly tailored restraints on retiree speech.
This Note ultimately offers an assortment of potential legal responses to the endorsement problem. These include modest changes that others have proposed, such as additional disclaimers, restrictions on the use of ranks and titles, and rules that would formally ostracize endorsers from events and partnerships with the active military. The Note also suggests a more radical last-ditch proposal: officers seeking promotion to general or admiral would have to agree, as a term of their employment contract at the highest ranks, to refrain from endorsing partisan candidates for eight years after retirement. Certainly, retired flag officer endorsements represent only one symptom of a larger civil military divide in the United States. But this symptom deserves further study, and not just because of its harmful effects. It serves as a reminder that while civilian control may be a fundamental, constitutionally derived principle, it relies on measures beyond the Constitution to manifest and protect it
Beyond Green Infrastructure--Integrating the Ecosystem Services Framework into Urban Planning Law and Policy
Get PDFDespite the heavy emphasis in legal scholarship on federal and state governance of environmental policy, cities have had their champions as well. Legal scholars who stand out as having defined a position for local governance in the environmental domain include John Nolan, Jamison Colburn, Keith Hirokawa, Tony Arnold, and, on any such list, Julian Juergensmeyer. Indeed, in the United States and many other nations, cities have been leaders in many of the looming issues of environmental policy, including those with global dimensions, like climate change mitigation, and surely those with local focus, like climate change adaptation. In the United States, starting with the wave of federal legislation in the 1970s—commonly portrayed as the beginning of modern environmental law and policy and its distinctive “cooperative federalism” model—cities have worked to leverage their traditional role as the locus of land use planning and regulation to
insert themselves in the new wave of environmental policy. Expanding land use regulation into a mechanism for advancing an environmental protection agenda, while fraught with political and practical obstacles, became a central goal of many local governments. Broadly speaking, this dispersed but coherent policy initiative to integrate broader environmental goals into local policy has flown under several flags. For example, many cities began focusing on environmental policy as a mechanism for, and one goal of, what came to be known as “growth management.
Beyond Wickedness: Managing Complex Systems and Climate Change
Get PDFThis Article examines the argument that climate change is a super wicked problem. It concludes that the wicked problem concept is best viewed as a rhetorical device that served a valuable function in arguing against technocratic hubris in the early 1970s but is unhelpful and possibly counterproductive as a tool for modern climate policy analysis. Richard Lazarus improved on this analysis by emphasizing the urgency of a climate response in his characterization of the climate problem as super wicked. We suggest another approach based on Charles Lindblom\u27s science of muddling through. The muddling through approach supports the rhetorical points for which the original wicked problem concept was introduced and provides greater practical guidance for developing new laws and policies to address climate change and other complex and messy environmental problems
The Long Rise and Quick Fall of Appraisal Arbitrage
Get PDFAppraisal is a legislatively created right for shareholders to seek a judicial determination of the fair value of their stock in certain transactions. For many decades, appraisal was a little-used and frequently maligned corporate law remedy. Beginning at the turn of the twenty-first century, this all changed when a group of financial investors, including some hedge funds, began filing appraisal cases. Appraisal arbitrage, as it became known, grew rapidly in popularity.
Appraisal arbitrage\u27s success soon attracted negative attention. In 2016, the Delaware legislature amended its appraisal statute to eliminate most small shareholders\u27 appraisal rights and to permit companies to prepay merger consideration to appraisal petitioners. In 2017, the Delaware Supreme Court issued two important decisions emphasizing that deal price was the primary measure of fair value for lower courts to use in appraisal proceedings. Appraisal filings plummeted soon thereafter.
In this Article, we seek to empirically explain the rise and fall of appraisal arbitrage using data from 2000-2019. For the period 2015-2019, we find that the average deal gross return to appraisal arbitrage is 13.2 %-far less than the 98.2% average for the 2000-2014 period. Looking at the main components of these returns, we find that, on average, prejudgment interest accrual generated total returns of 18.1% for appraisal petitioners from 2015-2019. However, the difference between the judicially determined fair price minus the deal price averages negative 5.3%. While both of these numbers are sharply lower than those in the pre-2015 era, the drop in judicial value improvement is especially large. We conclude that the principal reasons for the decline of appraisal arbitrage were the Delaware Supreme Court\u27s 2017 opinions
The Sacred Fourth Amendment Text
Get PDFThe Supreme Court\u27s jurisprudence governing the Fourth Amendment\u27s threshold --a word meant to refer to the types of police actions that trigger the amendment\u27s warrant and reasonableness requirements--has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court\u27s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target\u27s property or property over which the target had control. After that decision-which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as reasonable--scholars have attempted to define the Amendment\u27s threshold by reference to history, philosophy, linguistics, empirical surveys, and positive law. With the advent of technology that more easily records, aggregates, and accesses public activities and everyday transactions, the cacophony on the threshold issue has grown deafening-especially so after the Supreme Court\u27s decisions in United States v. Jones and Carpenter v. United States. In these decisions, the Court seemed to backtrack from its previously established notions that public travels and personal information held by third parties are not reasonably perceived as private and are therefore not protected by the Fourth Amendment
The FEMALE Act: Bringing Title IX into the Twenty-First Century
Get PDFWhat was once lauded as a progressive champion for women has been decaying in practice. Enacted more than forty-five years ago, Title IX\u27s unforeseen consequences and shortcomings are primarily borne by female collegiate athletes. To comply with Title IX, the majority of college athletic programs follow the proportionality standard, which mandates that male and female participation in athletics must be substantially proportional to universities\u27 overall undergraduate enrollment. Female participation in college athletics has increased to nearly five times the pre-1972 participation rates since the introduction of Title IX. While that progress is admirable, the athletes of today-both male and female-deserve better.
A decrease in the number of female coaches, high rates of sexual abuse of female athletes, and elimination of successful men\u27s programs are some of the major negative unintended consequences of Title IX as it is currently implemented. It is in the best interest of all serious collegiate athletes-male and female-to update the system to ensure the integrity of college athletics and wellbeing of student athletes. This Note argues that the best way to fix Title IX is to alter its biggest weakness: the proportionality requirement. Specifically, this Note suggests a new solution: the FEMALE Act, which would (1) remove the top revenue-producing sport at each school from the proportionality calculation; (2) require schools to meet the proportionality requirement with coaches, not just athletes; and (3) add provisions that better protect athletes from sexual abuse
De- and Re-Constructing Public Governance for Biodiversity Conservation Symposium: Governing Wicked Problems
Get PDFThis Article deconstructs the substantive, procedural, and structural components of public governance in the United States to explain how the existing legal infrastructure lacks the legal adaptive capacity to manage the wickedness of biodiversity loss. That is, particularly in the context of global anthropogenic climate change, the substantive goals and tools of public action, the processes used by governmental institutions to advance such goals and implement such tools, and the structure of allocated authority among public institutions have been devised in ways that make biodiversity loss virtually impossible to tackle meaningfully.
First, the substantive goals of natural resources law are not primarily directed at promoting biodiversity or broader notions of ecological health. Indeed, the range of tools conventionally employed for achieving such regulatory goals are primarily directed at one of several objectives that, at best, have only indirectly been aimed at promoting some version of biodiversity: minimizing direct human harm or other interventions, maintaining historical conditions, or maximizing resource yield. The few more recent interventions that are better directed at promoting ecological health remain rare and inadequate. As a result, it would be misleading to state that we have even attempted to address the biodiversity crisis through governance in any meaningful way.
Second, public biodiversity governance lacks procedural legal adaptive capacity. The conventional regulatory and management processes adopted for advancing prevailing natural resource goals and for deciding when and how to employ such strategies are insufficiently tethered to managing both the uncertainties and the dynamics accompanying ecological phenomena. Significant opportunities remain for adapting biodiversity governance to be better directed at promoting learning, reducing uncertainty, and adjusting strategies as ecological conditions shift and managers gain information.
Third, the configuration of authority among institutional actors charged with implementing natural resources law remains underexplored and deficient. There has been insufficient attention directed at parsing and adjusting the structure of governance. Unfortunately, authority over natural resources management and regulation has remained largely fragmented into many decentralized, overlapping, and poorly coordinated institutions. Tailored alterations to the allocation of authority over natural resources can leverage key advantages of centralized and/or coordinated institutions while maintaining the largely decentralized, independent, and overlapping character of public biodiversity governance
How Can Law and Policy Advance Quality in Genomic Analysis and Interpretation for Clinical Care?
Get PDFDelivering high quality care to patients depends on having accurate test results whose clinical implications are understood. While these requirements apply throughout medicine, the question of how best to ensure the quality of genetic tests used in clinical care, in particular, has vexed scientists and regulators alike for roughly two decades. Numerous federal advisory committees, expert scientific bodies, and professional societies have weighed in on the issue, proposed a variety of approaches, and identified a number of governmental and non-governmental entities to regulate the quality of single-gene tests. Over time, the understanding and clinical use of genetic tests have increased dramatically, but challenges in ensuring patients get accurate results whose clinical impact is understood are not yet solved. One need only look at discrepant results from different laboratories and the number of variants of uncertain significance to see the enormity of the current challenges.
As difficult as the issues attending single-gene tests are, genomic tests — which make possible the examination of multiple variants across one genome that can be analyzed individually or in combination to inform patient care — present a whole new level of complexity. An ongoing challenge for genomic tests, including those using next-generation or genome sequencing technology (NGS), is determining when the results of such testing are of sufficient quality to inform clinical decision-making. Indeed, simply gaining consensus on the meaning and appropriate parameters of “quality” in this context — let alone on which entities should be responsible for serving as quality gatekeepers — is difficult