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Aldiama Anthony reflects on a study by Anya Bernstein, “Interpenetration of Powers: Channels and Obstacles for Populist Impulses”
Get PDFA study conducted by a Baldy Center research grant recipient, Anya Bernstein, “Interpenetration of Powers: Channels and Obstacles for Populist Impulses,” turns to political pragmatics focused on the people who actually populate the government by drawing on interviews with administrators in the government of two successful but quite different democracies – the United States and Taiwan. The study explores the separation of powers consciousness, the political identity of those who govern, and the separation, interpretation, and executive consolidation of government
Temporary Eminent Domain
Get PDFTimes of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimedat addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergencydiverge, if at all, from temporary takeovers in more ordinary times?
The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a local government imposes a temporary moratorium on land development until a certain condition is met. This Article focuses, however, on less investigatedscenarios of temporary physical takeovers or other forms of governmentinvasions. It seeks to identify the differences between a temporary invasion and a permanent occupation of property considered a per se taking under the Loretto rule. In so doing, this Article argues that whilethe alleged distinction between prevention of public harm and promotionof public benefit often proves untenable in evaluating whether a permanent government measure constitutes a taking, it might make moresense in exploring temporary acts.
Temporary eminent domain—referring here to various types of actsamounting to time-limited physical takings, even if not initially recognized as such by the government—may diverge from permanenteminent domain in yet another key element: identifying the basis for justcompensation. Under long established (although often criticized) rules, compensation for a permanent taking is based on identifying the “fair market value” of the rights taken, while ignoring the effects that the public use for which the underlying asset is taken might have on the property’s long-term value.
The allegedly parallel metric used in the case of temporary takings,one of “fair rental value,” may often prove inadequate, both practically and normatively. This Article argues that because of unique aspects of temporary physical takings, legal rules on compensation should often seek to identify lost profits or actual damage. Moreover, in some cases, in which there is a direct relation between the pre-appropriation use of the asset and its post-appropriation use by the government, justcompensation might also be based on a certain portion of the value of thepublic use. This is especially so when the time-sensitive value of the assetduring such public use is particularly high. On this point, the Article offers an analogy to rules pertaining to compulsory licenses for patents
The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination
Get PDFThis Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.
On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well
ClassCrits Time?: Building Institutions, Building Frameworks
Get PDFThis essay chronicles the development of ClassCrits, an organization of US legal scholars that seeks to ground economic analyses in progressive legal jurisprudence. Today, ClassCrits ideas may resonate with a broader audience. I attribute this institutional success partly to ClassCrits’ commitment to: an interdisciplinary “big tent” openness, safe and responsive space, and praxis and collaboration. I then explore three key topics in a selection of ClassCrits writings on class and law: (1) neoliberal entrenchment and preservation; (2) class oppression; and (3) the intersecting oppression of class and race. I argue that ClassCrits scholarship on law and neoliberalism is productively viewed through and anticipates Wendy Brown’s recent work, and that Erik Olin Wright’s approach to class analysis may add more theoretical cohesion to ClassCrits work on law and class. Finally, I suggest that Cedric Robinson’s theory of racial capitalism holds promise for ClassCrits scholarship on the intersection of race and class
Subnational Constitutionalism in the United States: Powerful states in a powerful federation
Get PDFPublished as Chapter 19 in Routledge Handbook of Subnational Constitutions and Constitutionalism, Patricia Popelier, Nicholas Aroney & Giacomo Delledonne, eds.
The United States has an extremely robust network of subnational constitutions. It is one of the few federations in the world in which subnational entities are understood to be fully competent polities with virtually complete constituent powers of self-organization and self-authorization. The authority to adopt a subnational constitution is consequently understood to be an incident of subnational sovereignty, a concept in turn derived from a conception of the basic federal order itself as highly decentralized.https://digitalcommons.law.buffalo.edu/book_sections/1394/thumbnail.jp
Blockchain Copyright Exchange – A Prototype
Get PDFThe copyright market for creative works such as music and movies traditionally involves a complex web of licensing transactions and exorbitant transaction costs. Out of every dollar that consumers pay, an artist who writes, performs, and produces her own work may receive less than fifteen cents while the rest are diverted to cover the costs of financing new production, marketing new works, and distributing royalties. Although artists are typically scheduled to receive royalties on a quarterly basis, a payment may lag as far as two years after users paid. Furthermore, if a collecting society is unable to identify the rightful owner for a royalty payment, it routinely allocates the royalty among its existing members.
This Article proposes a blockchain copyright exchange (“BCE”) that dramatically improves efficiency and accuracy in copyright transactions by hardcoding thousands of copyright rules and license terms in blockchain-based smart contracts. First, BCE allows artists to earn a royalty per stream potentially sixteen times larger than Spotify offers and eighty times larger than YouTube offers. Artists receive payments at a speed millions of times faster, in a matter of seconds instead of months, with zero administrative charges and zero dollars falling through the cracks. Second, BCE allows artists to launch crowdfunding campaigns inviting fans to securely finance creative works in return for a share of copyright ownership in the form of a non-fungible token (“NFT”) or a fungible token (“FT”). It significantly diversifies the investment risks for artists and labels alike. Third, BCE cultivates a healthy ecosystem among artists and users by mobilizing users to mine BCE tokens through distribution and promotion of licensed works. These powerful incentives, together with BCE’s innovative enforcement mechanisms, may effectively eliminate the breeding ground for copyright piracy
Protecting Consumer Protection: Filling the Federal Enforcement Gap
Get PDFSince 2014, when a first-of-its-kind empirical study looked at how public enforcers use their authority under unfair and deceptive acts and practices (“UDAP”) laws, the enforcement landscape has changed. Most notably, the Trump Administration weakened enforcement on the federal level. In the wake of this political shift, many state enforcers rushed to fill the gap left by weak federal enforcement. At the same time, the state enforcers themselves experienced changes both internal (including changes to budgets and stated policy priorities) and external (electoral changes regarding state Attorneys General, changes to statutory authority, and other changes governing the enforcer’s authority).
This article presents findings from a follow-up study examining the public UDAP enforcement landscape in 2018. The principal finding is that states employed substantially the same strategies toward UDAP enforcement in 2018 as they did in 2014. This finding validates the central observation of both years’ studies of state UDAP enforcement: states can be characterized by distinct strategies of consumer protection enforcement.
This information alone offers insight into the remarkable stability of state UDAP enforcement, even across varied strategies and a changing landscape. Other findings also begin to shed light on how states might react to extreme changes in enforcement on the federal level. For example, even though six states have made public statements backed by concrete actions to attempt to fill an enforcement gap left by the absence of federal action, state enforcement case volumes were up among all states. Public compensation, however, was down among all types of enforcement actions in 2018.
Finally, comparisons of enforcement case volumes and strategies across states that experienced other changes over the time period—changes in leadership and statutory authority, for example—mirrored the overall trend of an increase in enforcement coupled with general strategic stability. Strategies as a whole do not seem closely aligned with partisan politics.
This study creates a needed point of comparison to the 2014 data, allowing stakeholders to ask deeper questions about how public enforcers should wield their discretion and authority to resolve consumer protection cases. With debt levels in America at an all-time high, and federal enforcement of consumer law at an all-time low, research-based action is urgently needed to sharpen our understanding of the role and potential effectiveness of institutions tasked with protecting consumers from fraudulent lending schemes and oppressive debt collection strategies as well as the myriad other types of consumer scams that lead Americans toward more debt. The data here give state officials and state-based reformers the information needed to maximize enforcement in a way that improves consumers’ lives