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The Attorney-Client Privilege Goes to Washington
Full text linkReviewing David Rapallo, House Rules: Congress and the Attorney Client Privilege, 100 WASH. U. L. REV. 455 (2022)
היחמור הציוני (The Zionist Ass)
No full textAlthough they remain controversial for a variety of reasons, including their high death toll for the animals themselves, reintroductions have been gaining prominence in conservation efforts across the globe for their potential to proactively counter heightened rates of extinction. In addition to their ecological goals, in Palestine-Israel conservation-focused reintroductions have been infused with biblical significance. Symbolizing the Jewish return to the Holy Land, animals associated with the Bible, such as the Asian wild ass and the Persian fallow deer, have been granted biopolitical priority. In the land of the Bible, the Judeo-Christian narrative of environmental restoration as a return to Eden has become official government policy
Consumer Voice and Optimal Firm Size
Full text linkThis Article examines the question: How can a consumer hold a seller to account in an exchange relationship when expectations have not been met? The Article’s first contribution is to recognize that, in the case of small firms, an employer business can provide a higher level of conflict resolution compared to a non-employer business. Unlike a consumer, an employer has the level of control necessary to compel an employee to remedy a product or service failure. Rather than engage in a costly personal confrontation with an employee, a dissatisfied consumer can simply request that the employer make the employee perform as promised. In this way, the existence of an employer-employee relationship allows a dissatisfied consumer to transfer or otherwise delegate conflict resolution to a person with greater power to remedy a product or service failure.
The Article’s second contribution is to recognize that, in the case of large firms operating in markets with imperfect competition, a large firm is likely to provide a suboptimal level of conflict resolution. When consumers are locked into an exchange relationship because switching costs are sufficiently high due to a lack of available market alternatives, consumers often have limited voice and no other feasible dissatisfaction response—a state of powerlessness that this Article terms “consumer captivity.” This Article argues that antitrust authorities ought to include consumer captivity more consistently in the mix of non-price consumer harms cognizable under U.S. antitrust law. To increase the level of conflict resolution of large firms in imperfect markets, this Article identifies two potential regulatory strategies informed by the analytic framework: (1) indirectly reduce the cost of consumer voice and (2) directly increase the probability that a dissatisfied consumer receives a compensatory remedy
Greening Monetary Policy: To Expand or Restrain? The Legal and Normative Implications of the Federal Reserve Combating Climate Change
No full textThe U.S. Federal Reserve is increasingly at the center of political and scholarly debates concerning how to address climate change. This new pressure comes as other central banks have recently considered an array of regulatory, supervisory, and monetary policy tools to mitigate climate change. Yet, in contrast to some of its global counterparts, the Federal Reserve has been more tailored in its response.
The desire to proactively combat climate change with central bank tools has generated a spectrum of policy designs and legal wrangling. Focusing on the Federal Reserve’s monetary policy mandate, this Article undertakes a comprehensive analysis of the legal and policy arguments both for and against Federal Reserve intervention in climate change. Specifically, it synthesizes these arguments into two sides: “restrainers” and “expanders.” The legal groundings of each side originate from broad and narrow approaches to statutory interpretation—specifically, the Federal Reserve Act and other pertinent statutes affecting the Federal Reserve’s purpose and ability to conduct monetary policy.
In analyzing these arguments, this Article considers the significance of the Federal Reserve’s legitimacy—analyzing whether the Nation’s central bank can offensively act on climate change and stay within its legal boundaries set by Congress. This Article then weighs these arguments and the Federal Reserve’s underlying legitimacy against normative factors—such as federal agency independence and political polarization.
Ultimately, this Article suggests that given the serious risk of further diminishing the Federal Reserve’s credibility—seen recently with other independent and unelected institutions like the U.S. Supreme Court—the Federal Reserve should remain as apolitical as possible
Dissenting Authority
Full text linkThis essay explicates J.B. White’s rhetorical conception of authority as a potentially collaborative achievement and contrasts it with the conception of authority as surrender of judgment prevailing in legal philosophy. On White’s view, authority is not an instrument held and deployed, but is conferred, like respect. This conception of authority illuminates three puzzles concerning the relationship between dissent and legal authority. First, Legal Positivism’s purportedly descriptive account of law insists it must claim an authority to govern independent of justice and assent. Yet law’s language is replete with justice-based appeals for popular assent. White’s reading of the practice of legal authority better explains this evidence. Second, liberal moral philosophers often take value dissensus as evidence that legal authority is necessarily illegitimate. Yet the language of radical dissenters often makes an appeal for legal authority rather than anarchy. White’s conception of legal authority as a practice of public reason better accounts for radical aspirations to claim authority. Third, a conventional account of precedent implies dissents are pointless, because they can have no legal authority. Yet White’s conception of authority as collaborative engagement explains how dissenting voices contribute authority to law. Law earns our allegiance by remaining open to contestation, and by inviting rather than repressing our critical judgment
Theoretical Justifications for Trade Secrets Protection of Routine Business Information
Full text linkFor over a century trade secret law has protected internal business information from misappropriation by departing employees. Over this time, courts developed various limiting doctrines to minimize the impact of this broad protection on employee mobility in particular cases. However, the workplace has changed significantly over this time and these changes raise substantial questions as to whether there is any valid theoretical justification for continuing to protect routine business information under trade secret law. In an environment where the vast majority of trade secrets claims are against former employees, the lack of sound justification for protecting routine business information, the basis for many of these suits, suggests a reevaluation of the broad scope of protection trade secret law provides is warranted. This Article analyzes the protection of routine business information through the lens of the theoretical justifications typically applied to intellectual property systems, including consequentialist and deontological approaches. The Article concludes that consequentialist or utilitarian rationales likely do not justify trade secrets protection for routine business information, while deontological approaches might only provide a weak justification. Accordingly, a reevaluation of the scope of trade secret law may be warranted so that employees can feel confident in making rational career choices without facing the risk of a misappropriation claim against them by their former employer